Opinion
No. 2379 C.D. 2011
07-11-2012
Deborah Anderson, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Deborah Anderson (Claimant) petitions for review of the November 30, 2011, decision and order of the Unemployment Compensation Board of Review (Board) affirming the decision of the Referee denying Claimant unemployment compensation. The Board concluded that Claimant was ineligible for 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). That section provides, in relevant part, that "[a]n 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." 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, 623-24 (Pa. Cmwlth. 1990).
Claimant was employed by Blessed Hands Bridal Boutique (Employer) in the Granite Run Mall in Springfield, Pennsylvania. Claimant was employed as a part-time bridal consultant at a rate of $7.25 per hour, working approximately 20-22 hours per week, from January 2011 until her last day worked on May 17, 2011. (Nov. 30, 2011, Board Decision, Findings of Fact (F.F.) ¶1.) During the course of Claimant's employment, Employer's owner was dissatisfied with the disrespectful way that Claimant spoke to her both in person and on the telephone. (F.F. ¶2.) The owner testified that Claimant had a bad attitude and was repeatedly disrespectful and talked back to her. (R. Item 10, Sept. 8, 2011, Hearing Transcript (H.T.) at 4.) In addition, Claimant frequently failed to answer the store's telephone and, when she did answer, she failed to answer promptly. (F.F. ¶3; H.T. at 9.) Because Claimant did not answer the store's telephone, the owner was concerned that Claimant was not opening the store in accordance with the rules of the mall in which the store is located. (F.F. ¶3.) The owner also testified that Claimant frequently would leave the store during her shift to talk with a neighboring merchant, and that Claimant's behavior and poor attitude adversely affected the conduct of Employer's business. (H.T. at 3, 9.) The owner informed Claimant that she would be discharged if her behavior and attitude did not change. (F.F. ¶4.)
On May 17, 2011, Claimant's final day of work, the owner telephoned the store during business hours and Claimant failed to answer. (F.F. ¶5.) The owner called back and, although Claimant answered, she failed to answer promptly and then challenged why the owner was calling the store. (F.F. ¶6.) Claimant put the call on speaker phone so that others could hear the conversation. (F.F. ¶7.) The owner asked to be taken off speaker phone, but Claimant, in a disrespectful tone, said that she was trying to eat and so she had to use the speaker phone. (F.F. ¶8, H.T. at 10.) The owner reminded Claimant that she was supposed to be working and not eating, and Claimant responded, "Well, I'm trying to eat." (H.T. at 10.) The owner became upset with Claimant's repeatedly disrespectful behavior and discharged her as of the end of her shift that day, at 4:00 p.m. (F.F. ¶9.)
Claimant filed for unemployment benefits and the local service center determined she was ineligible for benefits under Section 402(e) for willful misconduct. The Referee agreed with that decision, reasoning that "where an employee continually exhibits a non-cooperative spirit, and it has been demonstrated that that conduct adversely impacted the work, then a finding of willful misconduct can be concluded." (Sept. 14, 2011, Referee Decision at 2.) Claimant appealed to the Board and the Board affirmed, making additional findings of fact and reasoning as follows:
[C]laimant engaged in a pattern of conduct over the course of her employment that was below the standards of behavior that the employer had a right to expect. The owner had warned the claimant that she was required to change her attitude and to answer the telephone in a timely manner. The owner credibly testified that the store was small and there was no reason for the telephone to go unanswered on multiple occasions. The claimant continued this pattern of behavior up until her last day of work. The claimant's reaction when the owner finally reached her [via telephone] evidences a disregard for her employment. The claimant's actions amount to willful misconduct.(Nov. 30, 2011, Board Decision at 2.) Claimant then appealed to this Court.
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 necessary findings of facts were supported by substantial evidence. Frazier v. Unemployment Compensation Board of Review, 833 A.2d 1181, 1183 n.4 (Pa. Cmwlth. 2003) (en banc).
On appeal, Claimant contends that the Board's decision should be reversed because her conduct did not rise to the level of willful misconduct, because the Board's decision was not supported by substantial evidence, and because the Board failed to consider that Claimant's actions were justified.
A vague finding that an employee was discharged for her poor attitude, without more, does not support a finding of willful misconduct. Unemployment Compensation Board of Review v. Dravage, 353 A.2d 88, 89 (Pa. Cmwlth. 1976). "An employee's poor attitude must be coupled with some specific conduct adverse to his employer's interest, or result in some identifiable detriment to the employer before a conclusion of willful misconduct is justified." Luketic v. Unemployment Compensation Board of Review, 386 A.2d 1045, 1047 (Pa. Cmwlth. 1978); see also Unemployment Compensation Board of Review v. Kullen, 346 A.2d 926, 927 (Pa. Cmwlth. 1975). Insubordination or refusal to comply with an employer's reasonable request, without good cause, may constitute willful misconduct. Lowe v. Unemployment Compensation Board of Review, 460 A.2d 870, 873 (Pa. Cmwlth. 1983) (distinguishing between mere questioning of the soundness of an employer's directive and refusal to comply with reasonable request); Kresge v. Unemployment Compensation Board of Review, 405 A.2d 1123, 1124 (Pa. Cmwlth. 1979).
Here, Claimant's repeated poor attitude, disrespectful behavior, and insubordination are supported by substantial evidence. In addition, her actions were detrimental to Employer's interest in the orderly operation of her business. Employer had warned Claimant that her conduct was unacceptable and that her employment would be terminated if the conduct continued. Claimant's misconduct did not stop and continued until the day she was discharged.
Claimant argues that her actions were justified, claiming that she used the speaker phone on May 17, 2011, because the owner's voice was "piercing," and claiming that on those occasions when she did not answer the telephone promptly, the store's telephone lines were not working properly. Those same arguments were before the referee and the Board, which made credibility rulings in favor of Employer.
The Board is the ultimate fact-finding body in unemployment matters and is empowered to resolve conflicts in evidence, to determine what weight is to be accorded the evidence, and to determine the credibility of witnesses. Guthrie v. Unemployment Compensation Board of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999). --------
In this case, the Board, based on substantial evidence, made a credibility determination that Claimant, without justification, was repeatedly disrespectful to Employer in both her words and actions, refused to follow reasonable instructions, and ignored warnings from Employer to stop her bad behavior. Therefore, Claimant was properly denied benefits on grounds of willful misconduct under Section 402(e) of the Law.
The order of the Board is affirmed.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 11th day of July, 2012, the order of the Unemployment Compensation Board of Review, dated November 30, 2011, at No. B-526775, is affirmed.
/s/_________
JAMES GARDNER COLINS, Senior Judge