Opinion
No. 1194 C.D. 2013
02-07-2014
Christina F. Fisher, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Christina F. Fisher (Claimant), proceeding pro se, petitions for review of an order of the Unemployment Compensation Board of Review (Board). The Board affirmed the Unemployment Compensation Referee's (Referee) decision denying Claimant unemployment compensation benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law) for willful misconduct. For the reasons set forth below, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
Claimant filed for unemployment compensation benefits after Whitemarsh Continuing Care (Employer) terminated her employment as a part-time waitress on January 10, 2013. The Allentown Service Center (Service Center) issued a determination, finding Claimant to be ineligible for compensation benefits. (Certified Record (C.R.), Item No. 4.) Claimant appealed the Service Center's determination, and a Referee conducted an evidentiary hearing.
At the hearing, Employer presented the testimony of its Director of Human Resources, Susan McMenamin. Ms. McMenamin testified that Employer discharged Claimant from employment for insubordination. (C.R., Item No. 8 at 5.) Specifically, she testified that Claimant was insubordinate when she refused to follow a directive given to her by at least two of her supervisors. (Id.) Employer also presented the testimony of two of Claimant's supervisors, Executive Chef Don Martin and Dining Manager Lauren Faunce.
Mr. Martin testified that he observed Claimant using her cell phone while at work, a violation of company policy, and that he told her to get off the phone. (Id. at 9.) He testified that Claimant's refusal to comply with his order resulted in an argument. (Id.) Mr. Martin then testified that he told Claimant he was going to write her up, that Claimant informed him she would not sign the write-up, and that she began to yell and scream at him. (Id.) At that point, he directed her to "punch out and go home." (Id.) When Claimant refused, he left the kitchen and instructed Ms. Faunce to "take care of that." (Id.)
Ms. Faunce testified that she heard part of the argument between Claimant and Mr. Martin, and that she went to investigate what was happening. (Id. at 7.) Mr. Martin then asked her to get the form to write-up Claimant, which Ms. Faunce did. (Id.) Ms. Faunce then testified that she followed Claimant around as Claimant continued to work in violation of Mr. Martin's directive and informed her, multiple times, that she needed to clock out per Mr. Martin's order. (Id.) Ms. Faunce also testified that she, too, ordered Claimant to clock out, and informed Claimant that Mr. Martin's orders were above her own, but that Claimant ignored her and continued to work. (Id.) Ms. McMenamin testified that Claimant finally stopped working and clocked out after Ms. McMenamin came over to speak with her and told Claimant she needed to leave. (Id. at 6.)
In response, Claimant testified that she never answered her cell phone that day; rather, when it rang, she took it out and silenced the ringer without ever answering. (Id. at 10-11.) Claimant then testified that Mr. Martin confronted her about the cell phone and told her to put it away. (Id. at 11.) Claimant testified that she told him the cell phone was already away, and he then "began to make smart remarks" to her, which made Claimant feel as though he was "being a bully." (Id.) Claimant further testified that she told Mr. Martin to "leave it alone." (Id.) In response, Mr. Martin created a scene in front of the rest of the kitchen staff as he became "wild," started "yelling and screaming," and told Claimant he was going to write her up. (Id.) Claimant testified that Mr. Martin became more irate when she informed him that she would not sign the write up, and he then instructed her to "clock out and go home." (Id. at 11-12.) Claimant refused, saying she would not clock out until she had spoken with Human Resources (HR), and continued to work. (Id. at 12.) Claimant testified that Ms. Faunce did not come out of her office "until after the second time he was, you know, still telling me to go home and screaming and hollering at me in the kitchen." (Id.) Claimant testified that she was then instructed by Ms. Faunce to either clock out or go to HR, but that Ms. Faunce never attempted to understand the situation or inquire about her welfare. (Id.) Claimant then told Ms. Faunce she would go to HR as soon as she finished the task she was working on, but Ms. McMenamin from HR arrived in Ms. Faunce's office before Claimant could leave. (Id.)
In explaining her decision not to immediately clock out or go to HR, Claimant testified that Mr. Martin created such scenes with her and other employees previously, that she believed the situation would blow over as it usually did, that Mr. Martin was unfairly taking his anger with someone else out on her, that Mr. Martin was bullying her, and that she took the time to "try[] to get my thoughts together and cool myself down inside so I [could] go over there and explain the situation to Susan [McMenamin]." (Id. at 13-15.)
Following the hearing, the Referee issued a decision in which he affirmed the Service Center's determination. The Referee determined Claimant to be ineligible for unemployment compensation benefits pursuant to Section 402(e) of the Law, reasoning that "claimant's insubordinate behavior in the workplace constitutes willful misconduct in connection with her work." (C.R., Item No. 9.)
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, in part, that a claimant shall be ineligible for compensation for any week in which the claimant's unemployment is due to "willful misconduct in connection with his work."
Claimant appealed the Referee's order to the Board, arguing that she did not understand that the Executive Chef had authority over her. (C.R., Item No. 10.) The Board affirmed the order, and issued its own findings of fact and conclusions of law. The Board found:
1. The claimant was last employed as a waitress by Whitemarsh Continuing Care from May 26, 2009, until January 10, 2013, at a final rate of $10.62 per hour.
2. On January 10, 2013, the claimant received a telephone call from her sister while she was at work.
3. The employer's head chef approached the claimant and told her to get off the phone, but the claimant refused.(C.R., Item No. 11.) In rendering the findings of fact, the Board explicitly resolved all conflicts in testimony in favor of Employer. (Id.)
4. Some form of argument ensued between the claimant and the head chef, ending with the head chef stating he was going to issue a write-up to the claimant.
5. The claimant told the head chef that she would not sign the write-up.
6. The head chef then went to tell the dining manager that the claimant refused to sign the write-up.
7. At approximately 2:15 p.m., the head chef returned from talking to the dining manager and told the claimant to clock out and go home.
8. The claimant refused to clock out and continued to do work.
9. The head chef then told the claimant again to clock out.
10. The dining manager then told the claimant that the chef's orders were above hers and that she needed to clock out.
11. The claimant refused stating that she would not clock out without first talking to human resources.
12. The claimant then continued to work.
13. The claimant eventually talked to a human resources representative, who came to the kitchen and told the claimant to clock out while an investigation was conducted.
14. The claimant clocked out at 2:35 p.m.
15. On January 10, 2013, the claimant was discharged for insubordination and, particularly for refusing to clock out as directed.
Based on the above findings, the Board concluded that Claimant engaged in willful misconduct and failed to establish good cause for her actions. (Id.) The Board reasoned:
Given the argument that ensued after the chef found the claimant using her cell phone and the claimant's subsequent refusal to sign the write up, it was not unreasonable for the employer to require the claimant to clock out. Instead of immediately clocking out, the claimant continued to work and kept working despite subsequent warnings to clock out. The claimant has failed to demonstrate why she could not have immediately clocked out and then spoken with her human resources manager to resolve the situation. It took the claimant twenty minutes to clock out after the head chef's first request. The claimant has not shown that it was reasonable to wait twenty minutes in defiance of her supervisors' directives.(Id.) The Board determined that the credible testimony of Employer's witness, Ms. Faunce, established that Claimant was aware of Mr. Martin's authority over her as the Executive Chef. (Id.) As a result, the Board determined that Claimant was ineligible to receive unemployment compensation benefits under Section 402(e) of the Law. Claimant now petitions this Court for review.
On appeal, Claimant raises two issues for review. First, she appears to argue that the Board's findings of fact are not supported by substantial evidence of record. Second, Claimant essentially argues that the Board erred in concluding that Claimant's conduct constituted willful misconduct.
This Court's standard of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704. --------
We first address Claimant's argument that substantial evidence does not exist to support the Board's findings of fact. Substantial evidence is defined as relevant evidence upon which a reasonable mind could base a conclusion. Johnson v. Unemployment Comp. Bd. of Review, 502 A.2d 738, 740 (Pa. Cmwlth. 1986). In determining whether there is substantial evidence to support the Board's findings, this Court must examine the testimony in the light most favorable to the prevailing party, giving that party the benefit of any inferences that can logically and reasonably be drawn from the evidence. Id. A determination as to whether substantial evidence exists to support a finding of fact can only be made upon examination of the record as a whole. Taylor v. Unemployment Comp. Bd. of Review, 474 Pa. 351, 355, 378 A.2d 829, 831 (1977). The Board's findings of fact are conclusive on appeal only so long as the record, taken as a whole, contains substantial evidence to support them. Penflex, Inc. v. Bryson, 506 Pa. 274, 286, 485 A.2d 359, 365 (1984). "The fact that [a party] may have produced witnesses who gave a different version of the events, or that [the party] might view the testimony differently than the Board is not grounds for reversal if substantial evidence supports the Board's findings." Tapco, Inc. v. Unemployment Comp. Bd. of Review, 650 A.2d 1106, 1108-09 (Pa. Cmwlth. 1994). Similarly, even if evidence exists in the record that could support a contrary conclusion, it does not follow that the findings of fact are not supported by substantial evidence. Johnson v. Unemployment Comp. Bd. of Review, 504 A.2d 989, 990 (Pa. Cmwlth. 1986).
In an unemployment case, it is well-settled that the Board is the ultimate fact finder and is, therefore, entitled to make its own determinations as to witness credibility and evidentiary weight. Peak v. Unemployment Comp. Bd. of Review, 509 Pa. 267, 276, 501 A.2d 1383, 1388 (1985). The Board is also empowered to resolve conflicts in the evidence. DeRiggi v. Unemployment Comp. Bd. of Review, 856 A.2d 253, 255 (Pa. Cmwlth. 2004). "Questions of credibility and the resolution of evidentiary conflicts are within the sound discretion of the Board, and are not subject to re-evaluation on judicial review." Peak, 509 Pa. at 276-77, 501 A.2d at 1388.
Claimant appears to argue that the Board's decision is not supported by substantial evidence because the Board did not credit her testimony, and instead credited the testimony of Employer's witnesses. Specifically, Claimant argues that the Board failed to consider "the validity of her own testimony/statement under oath that she did not refuse to hang up the phone," that the Board accepted without question Employer's testimony while simultaneously questioning Claimant's, and that the Board failed to question whether Ms. Faunce's testimony had been a first-hand account or hearsay. (Claimant's Br. at 4, 7.)
Claimant's argument ignores the well-settled precedent of this Court. The Board, as the ultimate fact finder, has the power to both weigh credibility and resolve evidentiary conflicts. See Peak, 509 Pa. at 276-77, 501 A.2d at 1388; DeRiggi, 865 A.2d at 255. Exercising that power in this case, the Board explicitly "resolve[d] the relevant conflicts in testimony in favor of [E]mployer." (C.R., Item No. 11.) In so doing, the Board credited Mr. Martin's version of events, in which he "came around the corner and [saw Claimant] was on the phone," ordered her to "get off the phone," and she refused. (C.R., Item No. 8 at 8-9; C.R., Item No. 11.) The Board also credited the testimony of Ms. Faunce, finding that she "credibly testified that she repeatedly told claimant that the head chef had authority." (C.R., Item No. 11.) Our review of the record, when viewed through the lens of the Board's credibility determination in favor of Employer, establishes that the Board's findings are supported by substantial evidence.
We next address Claimant's argument that the Board erred in concluding that her actions constituted willful misconduct. Whether or not an employee's actions amount to willful misconduct is a question of law subject to review by this Court. Nolan v. Unemployment Comp. Bd. of Review, 425 A.2d 1203, 1205 (Pa. Cmwlth. 1981).
Section 402(e) of the Law provides, in part, that an employee shall be ineligible for compensation for any week in which "his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work." The employer bears the burden of proving that the claimant's unemployment is due to the claimant's willful misconduct. Walsh v. Unemployment Comp. Bd. of Review, 943 A.2d 363, 369 (Pa. Cmwlth. 2008). The term "willful misconduct" is not defined by statute. The courts, however, have defined "willful misconduct" as:
(a) wanton or willful disregard for an employer's interests; (b) deliberate violation of an employer's rule; (c) disregard for standards of behavior which an employer can rightfully expect of an employee; or (d) negligence indicating an intentional disregard of the employer's interest or an employee's duties or obligations.Grieb v. Unemployment Comp. Bd. of Review, 573 Pa. 594, 600, 827 A.2d 422, 425 (2003). "[A]n employee's direct refusal to comply with an employer directive can constitute willful misconduct." Klapec Trucking Co. v. Unemployment Comp. Bd. of Review, 503 A.2d 1122, 1124 (Pa. Cmwlth. 1986). "Where an employee is discharged for refusing to follow an employer's directive, both the reasonableness of the demand and the reasonableness of the employee's refusal must be examined." Dougherty v. Unemployment Comp. Bd. of Review, 686 A.2d 53, 54 (Pa. Cmwlth. 1996). Where an employee's action is justifiable or reasonable under the circumstances, it cannot be considered willful misconduct. Simpson v. Unemployment Comp. Bd. of Review, 450 A.2d 305, 308 (Pa. Cmwlth. 1982), cert. denied, 464 U.S. 822 (1983). "In other words, if there was 'good cause' for the employee's action, he cannot be deemed guilty of willful misconduct." Id.
Here, the fact that Claimant refused to obey Mr. Martin's demand that she clock out and go home is undisputed. The sole issue, therefore, is whether Mr. Martin's demand and Claimant's subsequent refusal were reasonable. As the Board found, Mr. Martin ordered Claimant to clock out and leave after they had an argument stemming from Claimant's use of her cell phone. (C.R., Item No. 11.) Given the argument and ensuing scene, we agree with the Board's conclusion that Employer's request that she leave was a reasonable one.
In asserting that her refusal was reasonable, Claimant argues that she did not deliberately violate Employer's rules. Claimant asserts that she needed permission from her supervisor to leave during her scheduled shift, that she did not know Mr. Martin, as Executive Chef, had supervisory authority over her, and that as such, she could not follow his directive to leave until told to do so by someone with the requisite authority. She further argues that in keeping with her understanding of the rules, she immediately clocked out when told to do so by Ms. McMenamin, someone she knew had the authority to issue the order. Additionally, Claimant testified that she did not immediately clock out because she felt that Mr. Martin was bullying her and she wanted to speak with HR before she left, but that she needed to "get [her] thoughts together and cool [her]self down inside" before she went to HR to explain the situation.
In response, the Board argues that Claimant failed to offer her confusion over Mr. Martin's authority as a reason for her refusal at the hearing before the Referee, that she failed to offer credible testimony or evidence establishing that Mr. Martin behaved aggressively or unreasonably, and that Claimant's desire to speak with HR did not constitute good cause for not clocking out as directed, because Claimant could have clocked out and then spoken with HR.
Claimant's argument that her refusal was reasonable essentially asks this Court to adopt her preferred version of the facts over the Board's findings, predicated as it is on her assertion that Mr. Martin was bullying her and deliberately blowing the situation out of proportion. But as noted above, the Board specifically resolved the evidentiary conflicts in favor of Employer. It is, therefore, the Board's findings, and not Claimant's contentions, that determine whether Claimant showed good cause for her conduct. Bruce v. Unemployment Comp. Bd. of Review, 2 A.3d 667, 671-72 (Pa. Cmwlth.), appeal denied, 608 Pa. 656, 12 A.3d 753 (2010). In resolving the evidentiary conflicts in favor of Employer, the Board credited Mr. Martin's testimony that it was Claimant who was creating a scene screaming and yelling, (C.R., Item No. 8 at 9), not Mr. Martin as Claimant asserted, (id. at 11). The Board also credited Ms. Faunce's testimony, which established that Claimant was repeatedly told she "need[ed] to listen" to Mr. Martin, that Mr. Martin "was above" Ms. Faunce, and that "the executive chef's orders [were] above" Ms. Faunce's. (Id. at 7-8.) Given these facts as found by the Board, we must agree with the Board that Claimant's refusal to clock out as directed was not reasonable. Finally, we agree with the Board's argument that Claimant's desire to speak with HR does not constitute good cause for refusing to obey the order, because Claimant could have spoken with HR after clocking out. Claimant could then have taken all the time she wanted to cool down before going to HR. Accordingly, Claimant's refusal to clock out when directed constituted willful misconduct.
For the forgoing reasons, we affirm the Board's order.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 7th day of February, 2014, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge