Opinion
No. 1383 C.D. 2013
06-06-2014
Berkley Medical Resources, Inc., Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
This matter was reassigned to the author on March 4, 2014.
Berkley Medical Resources, Inc. (Employer) petitions for review of the August 9, 2013 order of the Unemployment Compensation Board of Review (Board), which affirmed a referee's determination that Dana Rozak (Claimant) was not ineligible for benefits pursuant to 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). Section 402(e) provides that an employee is ineligible for unemployment compensation benefits for any week in which her unemployment is due to a discharge from work for willful misconduct committed in connection with her work.
Claimant worked as a tow driver in Employer's receiving warehouse. (Finding of Fact No. 1.) Employer has a "policy which is generic in nature establishing discipline for harassment of any kind and any type within the work setting." (Finding of Fact No. 2.) Claimant was having extreme difficulty with one of her co-workers and as a result of an incident involving that co-worker on April 15, 2013, she became very upset. (Findings of Fact Nos. 3-4.) Claimant called Suzanne Herman, Employer's human resources manager, and stated that if something was not done about the co-worker, she was going to punch the co-worker in the face. (Findings of Fact Nos. 5, 8.) Claimant mentioned punching the co-worker in the face three times during the conversation with the human resources manager. (Finding of Fact No. 9.)
Although Employer has not challenged any of the Board's fact-finding, the Board notes in its appellate brief that there is no record support for the finding that Claimant's statement was premised on the condition "if something was not done about the co-worker."
Claimant believed her conversation with the manager was confidential and that she was simply venting her anger with the co-worker to the manager. (Findings of Fact Nos. 7, 11.) Claimant was also "so disturbed she could not recall what she was saying to the [human resources] manager." (Finding of Fact No. 6.) The co-worker was never threatened directly. (Finding of Fact No. 10.) Claimant was then terminated for violation of the harassment policy because of the possibility that she might punch her co-worker in the face. (Finding of Fact No. 12.)
Claimant applied for unemployment compensation, and on May 7, 2013, the local job center determined that Claimant was ineligible for benefits pursuant to section 402(e) of the Law. The local job center concluded that Claimant's threats of violence towards a co-worker constituted a willful disregard of Employer's interests. Claimant appealed, and the matter was assigned to a referee. The referee conducted a hearing on June 6, 2013. Herman testified that during an April 15, 2013 phone conversation she had with Claimant, Claimant threatened to punch a co-worker in the face. Herman described Claimant's statements as a violation of Employer's harassment policy, a copy of which Claimant acknowledged receiving on October 26, 2009. Herman stated that Employer has zero tolerance for threats of bodily harm to co-workers.
Herman then provided specific details regarding Claimant's phone call, which she memorialized in writing immediately thereafter, and the incident which precipitated the call. Herman testified that the co-worker had complained to a supervisor regarding Claimant's placement of a fragranced product near her work area. The supervisor then asked Claimant to move the product to accommodate the co-worker. Claimant told Herman she felt that Employer was "catering" to the co-worker and that it was not necessary to move the product. (Reproduced Record (R.R.) at 28a.) Herman described the accommodation as reasonable. Herman stated that Claimant then informed her that she was quitting, giving her two-week notice, and that she had a new job "lined up." Id. Claimant also stated to Herman that she was going to punch the co-worker in the face before she left. Herman noted that Claimant repeated this statement two more times, that Claimant sounded "very angry" when making these statements, and that Claimant also informed her that she "did not care if she got fired." (R.R. at 30a.)
Herman testified that, following a discussion with Shawn Hellen, Employer's production manager, the decision was made to terminate Claimant and Hellen, in the presence of Herman and a union representative, called Claimant and informed her of her termination. On cross-examination, Herman acknowledged that Claimant called her back two hours later to apologize.
Hellen also testified on Employer's behalf, noting that Claimant had a direct supervisor in the shipping department where she worked but that he was the person responsible for the whole warehouse. Hellen described the product that Claimant was asked to move as a "wiper," consisting of a powder that contained a detergent with a "real strong fragrance." (R.R. at 36a.) Hellen testified that the product was sitting right outside of the co-worker's work area.
Throughout the hearing, Claimant attempted to question Employer's witnesses regarding her co-worker's complaints about the perfume she was wearing and Employer's institution of a no perfume policy. However, the referee deemed any such testimony or evidence as irrelevant to the April 15, 2013 phone call and the reasons underlying Claimant's termination.
Claimant testified as to her belief that her punishment was harsh, especially in light of the fact that she did not directly confront the co-worker and other employees have not been fired when they had face to face confrontations. At most, Claimant stated that these employees were warned and/or suspended. Claimant noted that she would never hit anybody in the face and that the only person she could talk to regarding the situation was Herman. Claimant testified that she was angry during the call and that she called back approximately two hours later after she had cooled off to apologize to Herman. Claimant believed her discussion with Herman was confidential. Claimant further testified that she was "upset" and "emotional," noting that she "wear[s] [her] emotions on [her] sleeve." (R.R. at 45a.)
On cross-examination, Claimant denied threatening her co-worker more than once during her conversation with Herman, but did admit to stating that she "would like to punch [her co-worker] in the face." (R.R. at 38a.) However, Claimant stressed that she merely stated that she would "like to" punch the co-worker in the face, not that she was "going to" punch her. (R.R. at 39a.) Claimant also acknowledged that it would be wrong to strike someone at work and that her comments to Herman were inappropriate. Claimant did not recall telling Herman she was quitting her employment and taking a job elsewhere.
By decision and order dated June 12, 2013, the referee reversed the determination of the local job center and concluded that Claimant was not ineligible for benefits. The referee reasoned as follows:
The [harassment policy] in this case is of a very generic nature and is not a zero tolerance policy. The statement was never said to the co-employee at any time nor was there any indication that threats were actually made to the co-employee by the claimant. It is evident from the hearing and from testimony of all parties that the claimant was extremely upset during the conversation with the employer on April 15, 2013. The purpose of the [harassment policy] is to make a safe and non-threatening workplace for the individuals who work in the employer's facility. In this particular case, the Referee cannot find that the claimant's venting of her anger to the HR manager was in any way a violation of the employer's policy. Moreover, since no threat was made directly to the co-employee in this case, there is nothing that would even meet the generic harassment policy in this matter. Finally, the claimant was actually terminated [for] what she would potentially do in the future, something that cannot be covered by a rule and cannot be guaranteed to have occurred. In this particular matter, the Referee finds that it was pure conjecture on the employer's side that the claimant would, in fact, punch the co-employee in the face and thereby make the employer liable because they had prior knowledge of the potential of injury and actions towards the co-employee. However, under the law, the employer does not have the luxury of guessing as what may happen in the future when applying a rule or policy. Had the employer been concerned that potential future actions would have been taken, the employer could have taken several steps which would have prevented any such escalation through potential suspension,
mandatory psychological counseling or any other counseling which could have assisted the claimant in her management of dealing with the co-employee in a non-aggressive and non-hostile manner. Any of these things could have been taken prior to discipline because there is nothing within the policy which demanded such at the time of the claimant's conversation with the HR manager.(Referee's decision at 2.) The Board affirmed, adopting and incorporating the referee's findings and conclusions. This appeal followed.
On appeal, Employer argues that the Board erred in concluding that Claimant was not ineligible for benefits under section 402(e). More specifically, Employer argues that Claimant's threats of violence towards her co-worker constituted a disregard of the standards of behavior an employer has a right to expect of an employee. Employer further argues that the facts that the statements were made to a third party, rather than the co-worker, and concerned possible future conduct, do not render the conduct non-disqualifying. We disagree.
Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law, and whether findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704.
The Law does not define the term "willful misconduct," but our courts have defined it as including: the wanton or willful disregard of the employer's interests; the deliberate violation of the employer's rules; the disregard of standards of behavior that an employer can rightfully expect from an employee; or negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard of the employer's interests or the employee's duties and obligations. Webb v. Unemployment Compensation Board of Review, 670 A.2d 1212 (Pa. Cmwlth. 1996). The employer bears the burden of proving that the employee's actions rose to the level of willful misconduct. Stauffer v. Unemployment Compensation Board of Review, 455 A.2d 300 (Pa. Cmwlth. 1983). Whether a claimant has committed willful misconduct is a question of law, reviewable by this Court. Harris v. Unemployment Compensation Board of Review, 447 A.2d 1060 (Pa. Cmwlth. 1982).
It is well settled that a threat of violence or harm to a supervisor or co-worker constitutes conduct below the standard of behavior expected of an employee. Sheets v. Unemployment Compensation Board of Review, 708 A.2d 884 (Pa. Cmwlth. 1998); Andrews v. Unemployment Compensation Board of Review, 633 A.2d 1261 (Pa. Cmwlth. 1993). A "threat" is defined as "a communication that conveys an intent to inflict harm or loss on another or on another's property." Aversa v. Unemployment Compensation Board of Review, 52 A.3d 565, 571 (Pa. Cmwlth. 2012) (citing Black's Law Dictionary 1519 (8th ed. 2004)). However, where a statement does not rise to the level of an actual threat, it will not be deemed to be disqualifying willful misconduct. Blount v. Unemployment Compensation Board of Review, 466 A.2d 771 (Pa. Cmwlth. 1983).
In Sheets, a co-worker overheard another employee stating that he "may as well shoot Carl and Steve and get it over with." Id. at 884-85. The co-worker who overheard the statement reported it to a supervisor and the employee was discharged for various rule infractions, including making threats towards co-workers. The employer had a policy which specifically stated that "disorderly conduct, which includes fighting, and threatening and attempting to inflict or inflicting bodily harm on another person, can lead to discharge for the first offense unless considerable provocation or other mitigating circumstances are present." Id. at 885. This Court affirmed the Board's denial of benefits under section 402(e), noting that the claimant violated the employer's rule which prohibited disorderly conduct in the nature of threats to co-workers as well as the lack of any provocation for the claimant's statement.
In Andrews, the claimant filed charges against the employer with the Human Relations Commission (Commission). The Commission held a fact-finding session wherein the employer's personnel director testified. Two days later, the personnel director suffered a miscarriage. Later, the claimant discussed the personnel director's miscarriage with co-workers, implying that he felt responsible for the miscarriage and that he did not regret it. The claimant also told the co-workers that further hearings before the Commission would cause the personnel director to suffer a second miscarriage, that something would happen before the end of the year to cause the personnel director to suffer pain, and that this would "get even with her." Id. at 1263. The employer discharged the claimant for making threats about the health and welfare of another employee.
This Court affirmed the Board's denial of benefits under section 402(e), holding that the claimant's statements were so offensive that they were inimical to the employer's best interest and a complete disregard of the standards of behavior which the employer had a right to expect from the claimant. In so holding, we noted that it did not matter that the threat was communicated to a third party rather than the person to whom it was intended, because such conduct creates discord and interrupts the employer's operation.
The Board recognizes these legal principles but argues that they are not controlling here because Claimant's statements did not constitute threats. Specifically, the Board argues:
It is evident from Claimant's testimony that she was highly upset about her coworker on April 15, 2013, and believed that she could speak about her frustrations with the HR
manager without consequence. After considering Claimant's testimony, the Board dispelled any inference that the remarks constituted 'threats,' when it found that the remarks were a mere 'venting of anger.'(Board's brief at 10.) The Board contends that the circumstances of this case closely resemble those in Blount.
In Blount, an employee's car was towed away for not having a parking sticker. While in the company cafeteria talking to this employee, the claimant remarked that if something like that were ever done to her, she would put a bomb in the back seat of the employee relations manager's car. Several co-workers heard the claimant's remark and she later repeated it. After the co-workers reported the claimant's remarks to the employer, the claimant was discharged. At a referee's hearing, it was brought out that the employer had been the victim of several bomb threats ostensibly related to labor unrest, that these threats had been reported to the F.B.I., and that the claimant was aware of them at the time of her remarks. Nevertheless, the referee concluded that the claimant was not ineligible for benefits under section 402(e) because the claimant's remarks had been made in an innocent and joking manner and she was incapable of carrying out such a threat. The Board reversed, concluding that, in light of the prior bomb threats, the claimant's remarks were sufficiently serious to constitute disqualifying willful misconduct.
This Court reversed, holding that while the claimant had made an off-hand remark, undeniably in bad taste, it did not rise to a level of an actual threat to disqualify her from receiving benefits. We noted that the claimant's comments were made in the cafeteria during a work break, at a time when the atmosphere was clearly relaxed; the comments were made and accepted as a joke; the person who was the subject of the remarks was not present; the employer presented no evidence whatsoever of any connection between the claimant and other bomb-threats or labor unrest; and there was no indication that the claimant was in any way capable of carrying out a bomb-threat.
In addition, we relied upon our previous decision in First Family Federal Savings and Loan Association v. Unemployment Compensation Board of Review, 449 A.2d 870 (Pa. Cmwlth. 1982), which involved a confrontation between a janitorial supervisor (the claimant) and a branch manager. The claimant approached the branch manager to discuss the conduct of a subordinate and an argument ensued during which the claimant, who had a penchant for manual gesturing, pointed at the manager, three feet away. The branch manager reached out and slapped the claimant's hand. The claimant then warned the branch manager that if she touched him again, he would reciprocate, at which point the confrontation ceased.
This Court affirmed the Board's grant of benefits to the claimant, noting that the janitorial supervisor was within his authority when he approached the branch manager to discuss a supervisory problem; the branch manager initiated the physical contact; and it was certainly justifiable for the janitorial supervisor to warn the aggressor that future contact would be met in kind. Moreover, we noted in First Family Federal Savings and Loan Association that the heated dialogue was de minimis, the remark, made during the heat of argument, was clearly conditional, i.e., the janitorial supervisor would retaliate if struck again, and there was no indication that the employee had any intent to act in accordance with the remark. Thus, we held that the janitorial supervisor's response, which we described as impulsive and de minimis, was justifiably provoked and did not rise to the level of willful misconduct. In so holding, we cited certain factors in determining whether a threat was de minimis, including whether the threat was conditional in nature and whether the employee indicated any intent to act according to the remark. Id.
In the present case, the Board found that the statements Claimant made to Herman were not threats, but instead were simply a means by which Claimant was venting her anger regarding a co-worker with whom she had previous problems. The Board essentially credited Claimant's testimony that she was angry and emotional at the time she spoke to Herman. Additionally, as the Board noted, Claimant was essentially terminated because of the possibility that she might commit some future act, which cannot be covered by any work rule and cannot be guaranteed to have occurred. In this regard, the Board cited Claimant's testimony that she would never hit somebody in the face and that she called Herman back shortly thereafter to apologize for her comments. While Claimant's comments were certainly inappropriate and may have been sufficient to warrant her termination, we agree with the Board that Employer failed to establish that Claimant's venting of anger to the human resources manager was a violation of Employer's generic harassment policy or that the comments were made with the requisite intent necessary to support a finding of willful misconduct. See Myers v. Unemployment Compensation Board of Review, 625 A.2d 622 (Pa. 1993) (holding that a finding of willful misconduct cannot be made without the element of intent).
This Court has emphasized that "there is a critical distinction between the employer's right to terminate employment and the state's right to deny unemployment benefits." Palladino v. Unemployment Compensation Board of Review, 81 A.3d 1096, 1103 (Pa. Cmwlth. 2013) (quoting Blake v. Unemployment Compensation Board of Review, 425 A.2d 43, 45 (Pa. Cmwlth. 1981)).
Accordingly, the order of the Board is affirmed.
Employer raises an additional argument concerning the Board's failure to address the issue of Claimant's purported resignation. However, Employer failed to raise this issue in its appeal to the Board. Hence, this issue is waived. Chapman v. Unemployment Compensation Board of Review, 20 A.3d 603 (Pa. Cmwlth. 2011) (holding that an allegation of error not raised before the Board is waived on appeal). --------
/s/_________
PATRICIA A. McCULLOUGH, Judge Judge Leadbetter dissents. ORDER
AND NOW, this 6th day of June, 2014, the order of the Unemployment Compensation Board of Review, dated August 9, 2013, is hereby affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge