Opinion
No. 793 C.D. 2012
02-13-2013
Kelly L. Baldinger, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Kelly L. Baldinger (Claimant) petitions for review of a decision of the Unemployment Compensation Board of Review (Board) that denied her benefits under Section 402(e) of the Unemployment Compensation Law (Law) (willful misconduct). In this appeal, Claimant argues the Board's determination that she committed willful misconduct by violating a work rule is not supported by substantial evidence, but rather is based on uncorroborated hearsay evidence. Alternatively, Claimant argues the work rule was not reasonable and she established good cause for its violation. For the reasons that follow, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e).
Claimant worked for the University of Pittsburgh Physicians (Employer) as a full-time Administrative Assistant Associate for six years until her last day of employment on November 18, 2011. Claimant applied for unemployment compensation benefits, which the local service center granted. Employer appealed to a referee.
The referee held a hearing. Heather White, Employer's Senior HR Consultant (HR Consultant), and Belinda Marino, Employer's Director of Operations (Director), both testified for Employer. Claimant testified without representation of counsel. The referee made the following findings.
Employer has a policy providing for immediate discharge for disruptive, offensive or harmful use of electronic communications. Claimant was aware of the policy and the potential consequence of its violation. During her last week of employment, Claimant showed a photograph of male genitalia on her cell phone to approximately six coworkers. After receiving complaints from some of Claimant's coworkers, Employer conducted an investigation and obtained a written statement from Claimant. Claimant informed HR Consultant that other coworkers engaged in similar conduct, but refused to provide specific information, including the names of the individuals. After the investigation, Employer discharged Claimant for violating its policy prohibiting disruptive, offensive or harmful use of electronic communications.
Based on these findings, the referee determined Claimant violated Employer's work rule. Claimant did not demonstrate the work rule is unreasonable or that she had good cause for its violation. Thus, the referee determined Employer met its burden of proving willful misconduct and denied Claimant benefits. Claimant appealed.
The Board adopted the referee's findings of fact and conclusions of law in their entirety. Additionally, the Board emphasized that, even if Claimant's conduct did not violate Employer's policy, her conduct was disqualifying because her action of showing her coworkers a photograph of male genitalia while at work was a willful disregard of Employer's interests. Furthermore, Claimant failed to prove Employer was aware that other employees allegedly engaged in similar conduct. Claimant failed to prove good cause for her conduct. Thus, the Board determined Claimant's conduct constituted willful misconduct disqualifying her from receiving benefits and affirmed the referee's decision.
Claimant now petitions for review. In this appeal, Claimant contends the Board erred in finding Employer proved she engaged in willful misconduct by violating a work rule prohibiting disruptive, offensive or harmful use of electronic communications. Claimant contends the record contains only uncorroborated hearsay evidence to show that her conduct was offensive. Claimant submits uncorroborated hearsay evidence cannot support a finding of willful misconduct warranting a denial of unemployment compensation benefits. Alternatively, Claimant asserts she demonstrated good cause for violating Employer's rule because the rule was unreasonable and she and her coworkers customarily engaged in similar conduct.
Our review is limited to determining whether the necessary findings of fact were supported by substantial evidence, whether errors of law were committed, or whether constitutional rights were violated. Oliver v. Unemployment Comp. Bd. of Review, 5 A.3d 432 (Pa. Cmwlth. 2010) (en banc).
To begin, Section 402(e) of the Law provides, "[a]n employe shall be ineligible for compensation for any week ... [i]n which [her] unemployment is due to [her] discharge ... from work for willful misconduct connected with [her] work ... ." 43 P.S. §802(e). "Willful misconduct" is "behavior evidencing a wanton or willful disregard of the employer's interests; a deliberate violation of the employer's work rules; a disregard of standards of behavior the employer can rightfully expect from its employee; [or], negligence indicating an intentional disregard of the employer's interest or an employee's duties or obligations." Dep't of Corr. v. Unemployment Comp. Bd. of Review, 943 A.2d 1011, 1015 (Pa. Cmwlth. 2008).
The employer bears the initial burden of proving a claimant engaged in willful misconduct. Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338 (Pa. Cmwlth. 2008). When asserting a discharge based on a violation of a work rule, an employer must establish the existence of the rule, the reasonableness of the rule, the claimant's knowledge of the rule, and its violation. Id.
Once an employer meets this burden, a claimant may then prove she had good cause for her actions. Dep't of Corr. A claimant can establish good cause by showing her actions were justifiable or reasonable under the circumstances. Id. Whether a claimant's actions constitute willful misconduct and whether a claimant proved good cause are both questions of law fully reviewable by this Court. Id.
Here, Claimant does not dispute that Employer established the existence of a policy prohibiting disruptive, offensive or harmful use of electronic communications, her awareness of the rule, and the potential consequences of its violation. Claimant candidly admitted she showed a photograph depicting male genitalia to about six of her coworkers at the office using her personal cell phone, via text message, which is a form of electronic communication. Reproduced Record (R.R.) at 59a.
Nevertheless, despite this admission, Claimant contends she did not violate the work rule because her conduct was not offensive. Claimant asserts Employer's testimony that her coworkers were offended by the photograph is uncorroborated hearsay, which cannot support a finding that Claimant violated Employer's policy.
"'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Pa. R.E. 801(c). While hearsay evidence, admitted without objection, may support a finding of fact in an unemployment compensation case, it may only do so if it is corroborated by other competent evidence of record. Myers v. Unemployment Comp. Bd. of Review, 533 Pa. 373, 625 A.2d 622 (1993); Walker v. Unemployment Comp. Bd. of Review, 367 A.2d 366 (Pa. Cmwlth. 1976). An out-of-court statement offered to explain course of conduct, however, is not hearsay. Architectural Testing, Inc. v. Unemployment Comp. Bd. of Review, 940 A.2d 1277 (Pa. Cmwlth. 2008) (providing out-of-court statements regarding a claimant's subpar job performance and suspected alcohol abuse did not constitute hearsay because they were not offered for the truth of the matter asserted, but were offered to show employer's reasonable suspicion to request a drug test).
At the referee's hearing, Director testified an employee was offended by the photograph and complained to her. R.R. at 55a. Director then reported the incident to HR Consultant. Id. At HR Consultant's direction, Director suspended Claimant pending further investigation and ultimately discharged her. Id. at 55a-56a. Employer also presented a letter from Director summarizing her investigation and identifying two employees offended by the photograph. R.R. at 68a.
HR Consultant testified she interviewed Claimant and some of her coworkers about the incident. Id. at 54a. Claimant told HR Consultant the photograph depicted male genitalia and that she showed it to six coworkers because she did not think they would be offended by it. Id. HR Consultant determined Claimant's conduct was a terminable offense and authorized her immediate discharge. Id. at 52a, 55a.
Employer's evidence indicating that employees were offended by the photograph was not offered for its truth. Rather, it explained Director's and HR Consultant's conduct of investigating the incident. See Architectural Testing. Therefore, the evidence was not hearsay, and it supports the Board's finding that Employer received complaints prompting an investigation.
Moreover, "[a] statement of the declarant's then existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, mental feeling, pain and bodily health" is admissible and may be considered by a fact finder. Pa. R.E. 803(3) (Hearsay exceptions; availability of declarant immaterial). This rule covers the coworkers' statements here. --------
Contrary to Claimant's assertions, it was not necessary for Employer to present evidence of her coworkers' reactions to the photograph to establish its offensiveness. Claimant admitted what the photograph depicted. Claimant did not aver any legitimate work-related reason for showing the photograph. Showing a photograph of genitalia for non-business-related reasons is patently offensive. See Witkowski v. Unemployment Comp. Bd. of Review, 633 A.2d 1259 (Pa. Cmwlth. 1993) (providing use of a racial slur was so offensive that it should have been obvious that it was in wanton disregard of employer's interests and in complete disregard of standards of behavior which employer had right to expect from its employees).
In short, Employer proved Claimant's conduct violated its policy by using electronic communications in an offensive manner. Even in the absence of a stated company policy, Claimant's conduct contravened the standards of behavior that any employer should expect from its employees. See Burchell v. Unemployment Comp. Bd. of Review, 848 A.2d 1082 (Pa. Cmwlth. 2004) (holding claimant's use of employer's computer to download pornographic material not only violated employer's policy but also disregarded the standard of behavior which the employer had a right to expect). Employer has the right to expect that its employees are engaging in meaningful work and not engaging in the conduct of showing coworkers nude photographs. We therefore conclude the Board did not err in determining Employer met its burden of proving Claimant engaged in willful misconduct.
We turn now to whether Claimant established good cause for her conduct. To that end, Claimant asserts Employer's policy is so vague and overbroad as to render it unreasonable because the policy does not state that it applies to an employee's personal electronic communications.
Employer's policy prohibits "disruptive, offensive or harmful use of electronic communications" at the workplace. R.R. at 65a. The policy does not limit electronic communications to those on Employer's equipment. Clearly, the purpose of the policy is to create a peaceful work environment. Therefore, the policy must pertain to all electronic communications in the workplace, including those on the personal devices of the employees, to be effective. Employer has every right to prohibit employees from using electronic communications on personal devices in a disruptive, offensive or harmful manner at the workplace. The Board did not err in determining Employer's policy is reasonable.
Claimant also contends the photograph was not offensive or disruptive to the environment in which she worked because she and her coworkers customarily engaged in jokes of a sexual nature.
Claimant did not present any evidence, other than her own testimony, regarding prior incidents of such behavior. Indeed, Claimant refused to provide specific information, including the names of the individuals who engaged in such conduct. R.R. at 58a-59a. Significantly, Claimant offered no evidence that Employer was aware of this past conduct. See Remcon Plastics, Inc. v. Unemployment Comp. Bd. of Review, 651 A.2d 671 (Pa. Cmwlth. 1994) (an employer must enforce a work rule uniformly in order to establish a standard of conduct that could reasonably be expected of an employee). Claimant testified she did not inform Director or HR Consultant about the allegedly offensive emails sent by her coworkers until Employer suspended her. R.R. at 59a.
While we understand Claimant may have previously engaged in inappropriate conduct with her coworkers, it does not justify her actions. See Dodson v. Unemployment Comp. Bd. of Review, 437 A.2d 1080 (Pa. Cmwlth. 1981) (providing vulgar language used by claimant was not made any less vulgar or offensive by the fact that such language was regularly used in the workplace). Claimant's conduct of showing coworkers a photograph of male genitalia crossed the line. Claimant's explanation that she did not think anyone would be offended by the photograph does not constitute good cause.
For these reasons, we affirm the Board.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 13th day of February, 2013, the order of the Unemployment Compensation Board of Review is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge