Opinion
No. 1871 C.D. 2014
05-11-2015
Jerrod W. Foster, M.A., Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Jerrod W. Foster (Claimant), representing himself, petitions for review of an order of the Unemployment Compensation Board of Review (Board) that found him ineligible for unemployment compensation (UC) benefits under Section 402(e) of the UC Law (Law) (relating to willful misconduct). The Board determined Claimant was ineligible for UC benefits because he refused to follow a directive of Enterprise Rent-a-Car (Employer). Claimant argues he did not commit insubordination because Employer did not issue a directive. Rather, he contends Employer requested he perform a task, such that he had a choice regarding whether to perform it. Claimant also asserts he ultimately decided to perform the requested task. Upon review, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. 2897 (1937), as amended, 43 P.S. §802(e).
I. Background
From February 11, 2013, until his discharge from employment on March 11, 2014, Claimant worked for Employer as a manager-in-training. Claimant's duties included delivering vehicles to customers. Employer terminated Claimant's employment based on his refusal to follow a directive to deliver a vehicle to a corporate customer. Claimant applied for UC benefits, which the local service center denied. Claimant appealed.
A referee held a hearing where Claimant, unrepresented by counsel, testified. Employer, represented by its human resource manager, presented the testimony of Pamela Logan, the assistant branch manager (Assistant Manager).
Claimant testified he never refused a directive, and distinguished between being asked to pick up a customer, and being instructed to do so. Assistant Manager testified she requested Claimant to perform a customer pick-up, and he refused. Specifically, she testified: "I told him to deliver a car to a customer." Ref. Hr'g, 5/14/14, Notes of Testimony (N.T.) at 10. Ultimately, the referee ruled in Claimant's favor, finding his refusal did not rise to the level of insubordination. Employer appealed.
Based on the record, the Board reversed the referee's decision, issuing its own findings and rationale. The Board made the following pertinent findings:
5. On March 11, 2014, [Claimant] answered a telephone call from a customer and informed the customer that he would send a car to pick her up.
6. [Assistant Manager] told [Claimant] to deliver the car to the customer.Bd. Op., 8/19/14, Findings of Fact (F.F.) Nos. 5-9.
7. [Claimant] refused and stated, "I don't feeling [sic] going on this pickup and I don't like corporate customers."
8. Because [Claimant] refused to perform the tasks, [Assistant Manager] sent another employee to pick up the customer.
9. [Employer] discharged [Claimant] for failure to deliver a car to customer.
In sum, the Board concluded Claimant refused a directive, and thus, he was ineligible for UC benefits. The Board resolved all conflicts in testimony in Employer's favor. Specifically, the Board did not find Claimant's testimony "that he agreed to deliver the car but that assistant branch manager sent another employee" to be credible. Bd. Op. at 2. The Board reasoned car delivery was one of Claimant's duties such that his refusal was not reasonable.
Claimant now petitions for review.
II. Discussion
On appeal, Claimant challenges the Board's Finding of Fact No. 6 that Assistant Manager "told" him to deliver a car to a corporate customer. He asserts Assistant Manager merely requested that he perform the task, more in terms of presenting an option.
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. Doyle v. Unemployment Comp. Bd. of Review, 58 A.3d 1288 (Pa. Cmwlth. 2013).
Section 402(e) of the Law provides, "[a]n employe shall be ineligible for compensation for any week ... [i]n which his unemployment is due to his discharge ... from work for willful misconduct connected with his work ...." 43 P.S. §802(e). Willful misconduct is defined by the courts as: (1) wanton and willful disregard of an employer's interests; (2) deliberate violation of rules; (3) disregard of the standards of behavior which an employer can rightfully expect from an employee; or, (4) negligence showing an intentional disregard of the employer's interests or the employee's duties and obligations. Johnson v. Unemployment Comp. Bd. of Review, 87 A.3d 1006 (Pa. Cmwlth. 2014) (citing Grieb v. Unemployment Comp. Bd. of Review, 827 A.2d 422 (Pa. 2002)). The employer bears the burden of establishing a claimant engaged in willful misconduct. Id.
An employee's refusal to comply with a directive or request of his employer may constitute willful misconduct under Section 402(e) of the Law. Dougherty v. Unemployment Comp. Bd. of Review, 686 A.2d 53 (Pa. Cmwlth. 1996). Where, as here, the determination of willful misconduct is based on a refusal to follow a directive, we evaluate the reasonableness of the employer's request, as well as a claimant's reason for noncompliance. Id. If a claimant's conduct is justified under the circumstances, it is not considered willful misconduct. Graham v. Unemployment Comp. Bd. of Review, 840 A.2d 1054 (Pa. Cmwtlh. 2004). A claimant bears the burden of establishing good cause for his refusal. Cundiff v. Unemployment Comp. Bd. of Review, 489 A.2d 948 (Pa. Cmwlth. 1985).
Essentially, Claimant contends Employer did not accurately portray the exchange between himself and Assistant Manager. He emphasizes the contradictions between his version of the events that transpired on the date of his discharge and management's version. Claimant asserts Assistant Manager gave him the option of picking up the customer rather than directing him to do so. On that predicate, he argues he never refused to follow a directive.
In his brief, Claimant argues the facts. His recitation of the facts consists primarily of his claims that Assistant Manager was intent on sabotaging his chances for a promotion. See Pet'r's Br. at pp. 8-24. --------
The Board's findings are conclusive on appeal provided the record, as a whole, contains substantial evidence to support them. Penflex, Inc. v. Bryson, 485 A.2d 359 (Pa. 1984); Hessou v. Unemployment Comp. Bd. of Review, 942 A.2d 194 (Pa. Cmwlth. 2008). "The fact that [a party] ... 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).
"Substantial evidence must be both competent and sufficient." Gibson v. Workers' Comp. Appeal Bd. (Amrco Stainless & Alloy Prods.), 861 A.2d 938, 944 (Pa. 2004). Substantial evidence is most often defined as evidence that a reasonable mind would accept as adequate to support the conclusion reached. See Umedman v. Unemployment Comp. Bd. of Review, 52 A.3d 558 (Pa. Cmwlth. 2012).
The credited testimony supports the Board's finding that Assistant Manager issued a verbal directive to Claimant. N.T. at 10; F.F. No. 6. Because the directive was not written, the only evidence available regarding phrasing and tone is the testimony of Claimant and the testimony of Assistant Manager.
It is unnecessary for directives to be written for us "to determine that an employee's violation [of a directive] constitutes willful misconduct: an employer may deal with its employees on a non-written basis and expect its directives to be followed." Graham, 840 A.2d at 1057 (citing Brady v. Unemployment Comp. Bd. of Review, 727 A.2d 1199 (Pa. Cmwlth. 1999)). Nevertheless, when an employee denies his refusal to comply with a directive, and claims he responded by questioning the soundness of the request, the response may not constitute willful misconduct. Lowe v. Unemployment Comp. Bd. of Review, 460 A.2d 870 (Pa. Cmwlth. 1983) (distinguishing outright refusal from criticism or questioning of directive).
In his version of the facts, Claimant describes the exchange between himself and Assistant Manager as a conversation where he made suggestions on how best to serve a customer in Oakland, outside the service area of the branch. He maintains he agreed to pick up the customer, but did not do so immediately. Instead, he began role-playing with a co-worker. N.T. at 12. It is unclear how much time elapsed between the time Claimant took the customer call and Assistant Manager sent someone else to serve the customer. The testimony is consistent that Assistant Manager sent another employee to serve the customer. The conflicts in testimony relate to how the Assistant Manager framed her request to Claimant.
Claimant questions the Board's determination that Assistant Manager's testimony that she "told" him to deliver a car was more credible than his testimony that she asked him if he wanted to pick up the customer. N.T. at 10. Critical here, the Board resolved all conflicts in testimony in Employer's favor. Bd. Op. at 2. In such cases, our review is limited.
The Board, as the ultimate fact-finder, is entitled to make its own determinations as to witness credibility and evidentiary weight, and to resolve conflicts in the evidence. Peak v. Unemployment Comp. Bd. of Review, 501 A.2d 1383 (Pa. 1985); Matthews v. Unemployment Comp. Bd. of Review, 86 A.3d 322 (Pa. Cmwlth. 2014). This Court is not in a position to question such credibility determinations when challenged on appeal. Peak.
The record supports the Board's finding that Assistant Manager told Claimant to perform a task he had a duty to perform, and he refused. N.T. at 10. Therefore, Employer met its burden of proving willful misconduct. Dougherty. Because Claimant did not present evidence to support the reasonableness of his refusal, we conclude Claimant failed to establish his actions were reasonable or justified under the circumstances. Cundiff.
III. Conclusion
Because the Board's findings are supported by substantial evidence, we affirm.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 11th day of May, 2015, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge