Opinion
No. 1277 C.D. 2014
05-14-2015
Roger D. Daugherty, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Roger Daugherty (Claimant) petitions for review of an adjudication of the Unemployment Compensation Board of Review (Board) that reversed a Referee's decision granting Claimant's claim for unemployment compensation benefits. In doing so, the Board held that Claimant was ineligible for benefits under Section 402(e) of the Unemployment Compensation Law (Law) because, despite numerous warnings, Claimant repeatedly made disrespectful and insubordinate comments about management to customers. We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e). In relevant part, Section 402(e) provides that an employee is ineligible for compensation when "his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work . . . [.]" 43 P.S. §802(e).
Claimant was employed by Connecting Point (Employer), a computer service store, as a full-time clerk for eight years. During his tenure, Claimant received several written warnings about his insubordinate behavior. On March 27, 2012, Employer warned Claimant not to make derogatory remarks about Employer's management. On January 11, 2013, Employer suspended Claimant for one day for engaging in offensive behavior towards Employer's president. On October 3, 2013, Employer again suspended Claimant for engaging in disrespectful behavior during a performance counseling session.
Employer terminated Claimant on November 7, 2013, for unprofessional and insubordinate conduct. Specifically, in its notice of termination, Employer cited three reasons for Claimant's discharge: (1) a complaint from a client about Claimant's unprofessional conduct; (2) information from the same client that Claimant tried to solicit work from it while he was suspended; and (3) a history of making derogatory comments about Employer's management. Claimant applied for unemployment compensation benefits, which the Altoona Unemployment Compensation Service Center denied. Claimant appealed, and a hearing was held on February 14, 2014, before a Referee. At the hearing, counsel for Claimant objected to the admission of several documents on hearsay grounds. The Referee held that portions of the documents contained hearsay, but admitted them to "use the part of [them] that is not hearsay." Notes of Testimony, February 14, 2014, at 3 (N.T. ___).
In its brief, Employer acknowledges that it was unable to present any evidence at the hearing regarding the first reason for termination. Therefore, we will not consider this reason.
Employer offered the testimony of Stephen Albert, Employer's president, and Jessica Albert, his daughter and Employer's manager. On Claimant's hearsay objection, the Referee prevented the Alberts from testifying about any statements made by third parties who were not present at the hearing. Stephen Albert testified that Claimant had received several warnings for insubordinate behavior in the past. He described incidents of Claimant's insubordination, including times when Claimant stated that Albert lacked any business experience and did not deserve to be in charge of the company. Jessica Albert testified regarding an incident where she heard Claimant make comments to a customer "along the lines of [Stephen Albert] not being there, being lazy, not doing his job and that work went better when management wasn't there." N.T. 26. Additionally, both Alberts testified that Claimant repeatedly spent more time with clients than was necessary to complete his work.
Claimant testified on his own behalf. He explained that he spent extra time with customers because he was being thorough and friendly. Claimant also testified that he attempted to correct his behavior, but Stephen Albert continuously changed the rules and enforced them inconsistently. Claimant denied stating to a customer that Stephen Albert lacked management experience. According to Claimant, he said that Albert "didn't have any experience." N.T. 35.
After the hearing, the Referee reversed the UC Service Center's determination and held that Claimant was not ineligible for benefits under Section 402(e) of the Law, 43 P.S. §802(e). Employer appealed to the Board, which reversed the Referee's decision and held that Claimant committed willful misconduct and was therefore ineligible for benefits. Although the Board acknowledged that Employer did not have written rules or policies, the Board concluded that Claimant's conduct was "inimical to [Employer's] interests and was a disregard of [the] standards of behavior an employer has the right to expect of its employees." Board Adjudication at 3. Claimant now petitions for this Court's review.
In his appeal, Claimant argues that Employer failed to offer competent, substantial evidence that he committed willful misconduct. Claimant also contends that, even if Employer did satisfy its evidentiary burden, Claimant's conduct was not willful misconduct as a matter of law because Claimant acted with Employer's best interests at heart.
In unemployment compensation appeals, our review is limited to determining whether the Board's adjudication is in violation of constitutional rights, whether errors of law were committed, or whether findings of fact are supported by substantial evidence. Yost v. Unemployment Compensation Board of Review, 42 A.3d 1158, 1161 n. 2 (Pa. Cmwlth. 2012).
We begin with a review of the law on willful misconduct. Although "willful misconduct" is not defined in the Law, the courts have established that it means the following:
(1) an act of wanton or willful disregard of the employer's interest;Altemus v. Unemployment Compensation Board of Review, 681 A.2d 866, 869 (Pa. Cmwlth. 1996). It is the employer's burden to establish that a claimant's conduct constituted willful misconduct. Conemaugh Memorial Medical Center v. Unemployment Compensation Board of Review, 814 A.2d 1286, 1288 (Pa. Cmwlth. 2003).
(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; and
(4) negligence indicating an intentional disregard of the employer's interest or of the employee's duties and obligations to the employer.
The Board's findings of fact are conclusive on appeal if the record, taken as a whole, contains substantial evidence to support them. Taylor v. Unemployment Compensation Board of Review, 378 A.2d 829, 831 (Pa. 1977). "Substantial evidence" has been defined as "such relevant evidence which a reasonable mind might accept as adequate to support a conclusion." Philadelphia Gas Works v. Unemployment Compensation Board of Review, 654 A.2d 153, 157 (Pa. Cmwlth. 1995). This Court must examine the testimony in the light most favorable to the prevailing party, "giving that party the benefit of all inferences that can logically and reasonably be drawn from the testimony, to see if substantial evidence for the Board's conclusion exists." Taylor, 378 A.2d at 831.
Claimant contends that rather than presenting first-hand, competent evidence of his insubordinate behavior, Employer offered only general allegations based on hearsay statements of third parties. Thus, Claimant argues that these statements did not constitute substantial competent evidence. Further, even if Employer's evidence was competent, Claimant argues that it does not demonstrate willful misconduct. Citing Caterpillar, Inc. v. Unemployment Compensation Board of Review, 703 A.2d 452 (Pa. 1997), Claimant contends that expressing one's opinion about management is not willful misconduct. Finally, Claimant contends that Employer could not terminate him for violating abstract, undefined rules. Employer counters that it presented substantial, competent evidence of Claimant's willful misconduct through the testimony of Stephen and Jessica Albert. We agree with Employer.
The Alberts' testimony established that, on several occasions, Claimant made disrespectful and insubordinate comments about Stephen Albert to a customer. An employer has the right to expect that an employee will not disparage either the company or employer's management in front of a customer. See, e.g., Grosskinsky v. Unemployment Compensation Board of Review, 452 A.2d 298, 299-300 (Pa. Cmwlth. 1982) (holding that a threat to sabotage an employer's business constitutes willful misconduct). Additionally, while the contents of Employer's warning letters to Claimant contain hearsay, the documents themselves establish that Claimant was warned repeatedly to correct his behavior and was on notice that he could be discharged if he did not comply.
Claimant's reliance on Caterpillar, 703 A.2d 452, is misplaced because that case is distinguishable. In Caterpillar, several employees were fired for wearing a t-shirt calling for the removal of a manager and supporting striking workers at one of the employer's other facilities. The Pennsylvania Supreme Court held that the workers' passive speech, which was also "protected union activity," did not constitute willful misconduct. In the present case, Claimant's speech was neither passive nor protected under labor law. Instead, Claimant actively disparaged Employer's management in front of customers. --------
In summary, the Board did not err in finding that Employer presented sufficient competent evidence that Claimant engaged in a pattern of disrespectful conduct towards Employer's management. Accordingly, we affirm the Board's order adjudicating Claimant ineligible for benefits under Section 402(e) of the Law, 43 P.S. §802(e).
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 14th day of May, 2015, the order of the Unemployment Compensation Board of Review dated June 24, 2014, in the above-captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge