Opinion
No. 1405 C.D. 2011
08-14-2012
René A. D'Onofrio, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
René A. D'Onofrio (Claimant) petitions pro se for review of the May 24, 2011 order of the Unemployment Compensation Board of Review (Board), which affirmed a referee's determination that Claimant is ineligible for benefits pursuant to section 402(e) of the Unemployment Compensation Law (Law). We now affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended 43 P.S. §802(e). Section 402(e) of the Law provides that an employee is ineligible for benefits if his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work.
Claimant worked for CNA Insurance (Employer) as a full time senior policy representative for approximately five years. Employer has a professional conduct policy that requires employees to act professionally at all times in the workplace or when representing the company. (Findings of Fact Nos. 1, 2.) Employer terminated Claimant's employment on November 22, 2010, citing a November 18, 2010 incident that occurred while Claimant was meeting with her supervisor, Nytza Santiago, and Employer's general manager, Susan Maus. (Findings of Fact Nos. 8-17.) The local service center denied Claimant's application for benefits and concluded that Claimant had been discharged for reasons that constitute willful misconduct under section 402(e) of the Law. Claimant appealed, and on January 26, 2011, a referee conducted a hearing in which both Claimant and Employer participated.
Ms. Santiago's testimony is summarized as follows. On November 15, 2010, Ms. Santiago spoke with Claimant and indicated to Claimant that her productivity was below standard. (N.T. at 4.) Claimant requested to be moved to another seating arrangement, and Ms. Santiago advised Claimant that her request would be sent to the general manager. (Id.) On November 18, 2010, Claimant met with Ms. Santiago and Ms. Maus and was told that her relocation request could not be accommodated because Employer did not want to isolate Claimant from her team. (Id.) During this meeting, Claimant became extremely upset and aggressive; she raised her voice, pointed her index finger on the table and towards Ms. Santiago and Ms. Maus, and made critical remarks about Ms. Maus. (N.T. at 5.)
Ms. Santiago stated that Claimant's behavior on November 18, 2010, was unprofessional and did not meet the standards of Employer's code of conduct. (N.T. at 11.) During her subsequent testimony, Ms. Maus corroborated Ms. Santiago's description of the incident. (Id.)
Ms. Santiago submitted a document titled "Professional Workplace" into evidence during the hearing. (Record Item No. 8, Employer Exhibit 1.) According to the document submitted, the "Professional Conduct" section of Employer's "Professional Workplace" policy provides that Employer "expects all employees to act professionally at all times in the workplace," and "[a]ny employee that acts contrary to [Employer's] standards for professionalism is subject to discipline up to, and including, termination." (Id.)
Ms. Santiago also offered into evidence a memo to Ms. Maus dated November 22, 2010, in which Ms. Santiago described the November 18, 2010 incident and recommended that Claimant's employment be terminated. (Id.) The memo states as follows:
On Thursday, November 18, 2010, we met with René to discuss her relocation request. We advised René that her request would be denied because we did not want her to be separated from the rest of the Small Business Department. At this point in the conversation, René's body language, demeanor, and tone of voice changed; she became hostile and aggressive. She raised her voice and stated that she was stressed and did not enjoy coming into work. She shouted that she "begs her spouse not to make her come to work." She then made statements that the General Manager did not care about her team. She told the General Manager that she needed to be more concerned with her team and not in developing leaders. She acted disrespectfully when she stated that employees raised concerns at team meetings and the General Manager turned it around into a "stupid positive saying." In a hostile tone of voice she said that the supervisors had their favorites and recognition is not provided to the team. She then told us how leadership needed to perform their jobs. During this interaction René acted in an aggressive manner as she pointed her finger at us, her hands were shaking, and her voice was raised. On several occasions, she moved towards the desk to pound on it with her index finger.(Id.)
Claimant did not object to the introduction of Employer Exhibit 1 into evidence during the hearing or on appeal to the Board.
During her testimony, Claimant denied that she had raised her voice or otherwise behaved as Ms. Santiago described. Claimant stated that she used the same tone of voice as her supervisor, answered questions correctly, and behaved normally. (N.T. at 7.) Claimant also denied that she acted in an unprofessional manner. (N.T. at 12.) Claimant acknowledged that she had reviewed Employer's professional conduct policy in 2008. (N.T. at 9.)
Following the hearing, the referee resolved the conflicting testimony in favor of Employer and concluded that Claimant's aggressive actions in shouting, pointing at the supervisor and general manager, pounding on a desk, and making negative comments about the general manager violated Employer's policy and constituted disqualifying willful misconduct. Claimant appealed to the Board, arguing that her conduct did not rise to the level of willful misconduct, her conduct did not violate Employer's policy, and that Employer did not introduce its policy into evidence. Claimant further argued that the language of Employer's policy was vague and would not put Claimant on notice as to what kind of conduct would subject her to discharge. The Board also accepted the testimony of Employer's witnesses as credible and found that, during the November 18, 2010 meeting, Claimant became very angry and aggressive towards the supervisor and general manager, shouted and pointed at them, and moved to a desk several times to pound on it with her index finger. (Findings of Fact Nos. 8-14.) The Board determined that Claimant's conduct violated Employer's professional conduct policy of which she was aware. The Board added that Claimant's actions also violated basic standards of behavior that an employer can rightfully expect of an employee. Accordingly, the Board affirmed the decision of the referee and held that Claimant is ineligible for benefits under section 402(e) of the Law. Claimant now appeals to this Court.
Our scope of review is limited to determining whether constitutional rights were violated, whether errors of law were committed, or whether necessary findings of fact are supported by substantial evidence. Schneider v. Unemployment Compensation Board of Review, 12 A.3d 754 (Pa. Cmwlth. 2010). --------
Initially, we note that although the Law does not define the term "willful misconduct," numerous decisions by this Court have defined that term as including: (1) a wanton or willful disregard for an employer's interests; (2) a deliberate violation of an employer's rules; (3) a disregard for standards of behavior which an employer can rightfully expect of an employee; or (4) negligence indicating an intentional disregard of the employer's interest or an employee's duties or obligations. Moran v. Unemployment Compensation Board of Review, 973 A.2d 1024 (Pa. Cmwlth. 2009).
Where a claimant is discharged for a rule violation, the employer has the burden to show the existence of a reasonable work rule and the claimant's violation of the rule. Conemaugh Memorial Medical Center v. Unemployment Compensation Board of Review, 814 A.2d 1286 (Pa. Cmwlth. 2003). Once the employer establishes those elements, the burden shifts to the claimant to show that she had good cause for her actions. Id. The question of whether a claimant's conduct rises to the level of willful misconduct is a question of law subject to our review. Frazier v. Unemployment Compensation Board of Review, 833 A.2d 1181 (Pa. Cmwlth. 2003).
Claimant first argues that the record does not support the Board's findings. However, our review of the record reveals that each of the Board's findings is amply supported by the credible evidence introduced by Employer. Although Claimant gave a different version of the meeting from that given by Employer's witnesses, this Court will not revisit the Board's credibility determinations on appeal. It is well settled that the Board is the ultimate fact finder in unemployment compensation proceedings and may accept or reject the testimony of any witness. Chapman v. Unemployment Compensation Board of Review, 20 A.3d 603 (Pa. Cmwlth. 2011). The Board's findings are conclusive on appeal where, as here, they are supported by substantial evidence. Id.
Claimant also contends that Employer failed to establish that her actions on November 18, 2010, violated Employer's "Professional Workplace" policy. Claimant maintains that the document submitted by Employer during the hearing is not the document she received from Employer and previously reviewed. Claimant also asserts that the language of the policy is vague.
However, determinations as to whether Claimant was given the document setting forth Employer's "Professional Workplace" policy and whether the language of that policy is vague would not be dispositive in the instant case, because we agree with the Board that Claimant's conduct constituted a disregard for the standards of behavior that an employer can rightfully expect from an employee. Claimant argues that because she did not use any profane, vulgar or offensive language, her conduct did not rise to the level of disqualifying willful misconduct. We disagree. Where an employee and his supervisor meet to discuss the former's job performance, the employer may rightfully expect that the employee will act in a reasonable manner to attempt to resolve any concerns or disputes which may arise. Dinkins v. Unemployment Compensation Board of Review, 424 A.2d 606 (Pa. Cmwlth. 2005). The employer may also rightfully expect that the employee will not become abusive or obstructive. Id.; Sargent v. Unemployment Compensation Board of Review, 630 A.2d 534 (Pa. Cmwlth. 1993).
In Sargent, the claimant demanded an explanation from her employer as to why her co-workers were discharged, and she accused the employer of spreading rumors about her coworkers. When the employer denied the claimant's accusation, the claimant expressed her skepticism as to the employer's truthfulness. The claimant was then discharged, and this Court upheld the Board's determination that the claimant's insolent manner and questions constituted willful misconduct.
Here, Claimant pointed at the supervisor and general manager, shouted at them, and made disrespectful comments. (Findings of Fact Nos. 9-13.) In accordance with Dinkins and Sargent, we conclude that Claimant's conduct constituted a disregard for standards of behavior which an employer can rightfully expect of an employee, constituting willful misconduct. Thus, the Board correctly concluded that Employer had met its burden of proof, and Claimant did not show good cause for her behavior.
Finally, Claimant contends that she was denied due process during the hearing and that the referee did not fulfill her duties and obligations in a just and fair manner. Claimant also asserts that she was barred from presenting evidence to rebut the evidence presented by Employer. We first note that this issue was not raised by Claimant in her appeal to the Board. Therefore, Claimant has waived this argument before this Court. See Ridley School District v. Unemployment Compensation Board of Review, 637 A.2d 749 (Pa. Cmwlth. 1994) (holding that because the claimant failed to raise an issue on appeal to the Board, he waived his right to raise it before this Court). More important, the record does not support Claimant's assertion.
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge President Judge Pellegrini dissents. ORDER
AND NOW, this 14th day of August, 2012, the order of the Unemployment Compensation Board of Review, dated May 24, 2011, is hereby affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge