Opinion
No. 942 C.D. 2012
11-02-2012
Penny Franklin, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Penny Franklin (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board) affirming the decision of the Referee which denied her unemployment compensation benefits because she was guilty of willful misconduct pursuant to Section 402(e) of the Unemployment Compensation Law (Law) for failing to follow Liberty Petroleum's (Employer) policies and procedures. For the reasons that follow, we affirm the Board.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). That section provides, in relevant part:
An employe shall be ineligible for compensation for any week -
(e) In which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work, irrespective of whether or not such work is "employment" as defined in this act.
Employer filed a brief as Intervenor in this matter. The Board did not file a brief with this Court.
Claimant was employed full-time by Employer as general manager of the Hartford Travel Plaza (travel plaza) from November 9, 2010, through November 10, 2011, at a final rate of $34,000 per year. Claimant's job responsibilities included changing the prices of gasoline and diesel fuel sold at the travel plaza's gas pumps. On November 2, 2011, at a meeting with two of Employer's district managers, Claimant received a final warning for a number of issues with her job performance. On November 10, 2011, Claimant was terminated because she incorrectly completed a price change and failed to wait the required 30 minutes before contacting Employer to confirm that the price had been completed and double-checked. Claimant filed for unemployment compensation benefits with the UC Service Center, which found that Employer sustained its burden of proving willful misconduct, but because Claimant showed good cause for her actions, granted benefits, and Employer appealed.
Before the Referee, Tammy Palmer (Palmer), a district manager for Employer, testified that Claimant was responsible for changing the prices of gasoline and diesel fuel at the travel plaza. She explained that the process involved three steps: (1) entering the new price on the travel plaza's outdoor sign; (2) changing the price on the Trendar machine; and (3) changing the price on the register inside the travel plaza, which changed the price at the pumps. In addition to those three steps, Palmer testified:
In December of 2010, we had added an additional step where...all managers were expected to recheck the pumps one half hour after the phone call was made to change the pumps and then report that to the District Manager what time the price change was done, what was changed, and what time it was double checked.(January 24, 2012 Hearing Transcript at 4). Palmer stated that she retrained Claimant on that procedure after Claimant had issues with it in January 2011, and retrained her again in March 2011 after she "had some issues with following directions with paperwork and invoices." Id. She testified that on November 9, 2011, Claimant received a phone call at 4:28 p.m. instructing her to raise the diesel fuel price by four cents, from $3.93 to $3.97 per gallon, but Claimant mistakenly lowered the price to $3.91. Despite that error, Palmer stated that Claimant telephoned her 21 minutes after making the price change in order to confirm that it had been done correctly. She testified that the error was ultimately discovered by an assistant manager at 5:02 p.m. after Claimant had clocked out for the day. Palmer explained that although Claimant did not have a set time schedule because she was employed in a salary position, "her shift was not over because she did not complete her half hour double check" prior to leaving. Id. at 7. Finally, Palmer testified that Employer regularly enforced its policy, and that Claimant had emailed her after a previous price change, thereby demonstrating that she was aware of the half-hour reporting requirement and had followed it in the past. Id. at 8.
Peg Napolitano (Napolitano), another district manager for Employer, testified that she and Palmer met with Claimant on November 2, 2011, to give her a final warning about various issues with her job performance. Napolitano explained that while Claimant had never previously posted incorrect prices, she had previously received warnings for changing them in the wrong sequence. She further testified that she asked Claimant at the November 2, 2011 meeting if her problems were attributable to training issues, and requested that Claimant provide her with a list of areas in which she required retraining, but that Claimant failed to do so.
Claimant testified that she was a student at the time of the November 9, 2011 incident and had to leave work at approximately 4:30 p.m. that day in order to make it to her class on time. Claimant explained that despite receiving the call from Employer at around 4:30 p.m., she may not have changed the price on the pumps until around 4:45 p.m. because of a number of issues that arose at the end of her shift. She testified that she complied with Employer's procedure by walking out to the gas pumps and checking the prices after she entered the changes, and that prior to leaving, she telephoned Palmer to confirm that the changes were made correctly. Claimant stated that she was "trying to be very careful" and that she "sincerely thought that [she] had changed everything correctly" before leaving for the day. Id. at 16. She testified that when she received a voicemail from the assistant manager informing her of the error, she attempted to return to the travel plaza in order to correct the problem, but was instructed by Napolitano not to worry about it because Napolitano would fix it. Claimant testified that similar mistakes with respect to price changes had been made by other employees before and since the November 9, 2011 incident.
However, Claimant later admitted that the price on the pumps did not change. (January 24, 2012 Hearing Transcript at 19).
Sara Utter (Utter), Claimant's coworker on November 9, 2011, testified that she witnessed Claimant change the prices on the register and Trendar, and walk outside to check the pumps "right when she changed it." Id. at 21. However, Utter stated that she did not recall Claimant double-checking the prices before leaving.
Finding that Claimant "failed to complete a diesel price change correctly which resulted in a financial loss to the employer," and noting that she was unable to explain why she failed to notice the error during the second price check, the Referee concluded that Claimant's actions constituted willful misconduct, thereby making her ineligible for benefits under Section 402(e) of the Law. (January 24, 2012 Referee Decision at 1-2). Claimant then appealed to the Board, which made additional findings of fact, including that Claimant "did not check that the price change was done correctly one half hour later," but, instead, "checked 21 minutes later." (March 22, 2012 Board Decision at 2). Noting Claimant's previous warnings for failing to follow Employer's directions, the Board affirmed the denial of benefits. This appeal by Claimant followed.
Our review of the Board's decision is limited to determining whether an error of law was committed, constitutional rights were violated, or necessary findings of fact are supported by substantial evidence. Frazier v. Unemployment Compensation Board of Review, 833 A.2d 1181, 1183 n.4 (Pa. Cmwlth. 2003).
On appeal, Claimant contends that the Board's finding of willful misconduct was not supported by substantial evidence. Essentially, she argues that she made an inadvertent error while changing the diesel fuel price, and the fact that she re-checked the price change and called the district manager to report the outcome of that check nine minutes early does not rise to the level of willful misconduct warranting a denial of benefits.
Willful misconduct has been defined as:
(1) wanton or willful disregard for an employer's interests; (2) deliberate violation of an employer's rules; (3) a disregard for the 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.Philadelphia Parking Authority v. Unemployment Compensation Board of Review, 1 A.3d 965, 968 (Pa. Cmwlth. 2010). Where a claimant is discharged for a work rule violation, the employer has the burden to show that the claimant was aware the work rule existed and that the claimant violated the rule. Id. The employer must also establish that the claimant's actions were intentional or deliberate, and the employee's actions must be considered in light of all of the circumstances, including the reasons for his or her noncompliance with the employer's directives. Id. (citations omitted). 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 Compensation Board of Review, 425 A.2d 1203, 1205 (Pa. Cmwlth. 1981).
Moreover, a single inadvertent error or minor act of negligence does not constitute willful misconduct. See Navickas v. Unemployment Compensation Board of Review, 567 Pa. 298, 787 A.2d 284 (2001) (nurse's inadvertent failure to properly dilute antibiotic before administering to patient did not constitute willful misconduct, despite one prior incident of error); Apple v. Unemployment Compensation Board of Review, 559 A.2d 87 (Pa. Cmwlth. 1989) (security lieutenant's inadvertent loss of beeper, proceeded by two other incidents of equipment loss over seven-year period, did not constitute willful misconduct); Frazier v. Unemployment Compensation Board of Review, 411 A.2d 580 (Pa. Cmwlth. 1980) (employee's inadvertent failure to secure a bank bag resulting in an $820 loss to employer did not constitute willful misconduct).
Therefore, Claimant's mere failure to correctly change the diesel fuel price on one occasion does not alone constitute willful misconduct, especially in light of her testimony that she was "trying to be very careful" and "sincerely thought that [she] had changed everything correctly." The sole issue for us to address, then, is whether Claimant's failure to wait the required 30 minutes before double-checking the price change and reporting it to the district manager rises to the level of willful misconduct.
The testimony and findings of fact on the issue of timing are largely inconsistent. For example, while cross-examining Claimant's witness at the Referee hearing, Palmer, the district manager, indicated that Claimant clocked out at 4:47 p.m. on November 9, 2011. (January 24, 2012 Hearing Transcript at 21). Claimant herself admitted that "[i]t may have been quarter of [5:00] when I got the pump changed." Id. at 16. Despite those statements, which appear to indicate that Claimant clocked out immediately after completing the price change, Palmer testified and the Board found as fact that Claimant checked the price change for accuracy and reported it 21 minutes after making the change. It seems more likely that Claimant called Palmer to confirm the price change 21 minutes after being instructed to make the change, not 21 minutes after actually making the change. Despite those inconsistencies, it is nevertheless clear from the record that Claimant did not wait the required 30 minutes before double-checking the price change and reporting it to the district manager.
The Board's finding of willful misconduct based on Claimant's failure to comply with that specific requirement was supported by substantial evidence. The evidence of record demonstrates that Claimant was familiar with Employer's policy requiring managers to double-check and report price changes to a district manager 30 minutes after completing a price change. Despite being familiar with Employer's rule, Claimant admittedly did not wait the required 30 minutes. In fact, based on the testimony of Claimant and her coworker, it is questionable whether Claimant checked the prices at all after changing them. Employer's rule is in place to ensure the accuracy of price changes and prevent financial losses to Employer. Had Claimant complied with the rule, she likely would have discovered her error prior to clocking out for the day, and Employer would not have suffered any loss. Claimant's argument that checking and reporting the price change nine minutes earlier than required does not constitute willful misconduct is without merit. In order to meet its burden, Employer must only demonstrate that Claimant was aware of a particular work rule and deliberately or intentionally violated that rule. Employer is not obligated to demonstrate the rationale behind its rule or demonstrate that 30 minutes is the minimum amount of time required in order to ensure effective checking and reporting of price changes. Therefore, Employer met its burden of proving willful misconduct.
That is, assuming Claimant even waited 21 minutes. As discussed in the previous footnote, it appears more likely that Claimant left immediately after changing the prices, without double-checking them at all. --------
Accordingly, the order of the Board is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 2nd day of November, 2012, the order of the Unemployment Compensation Board of Review, dated March 22, 2012, at No. B-532580, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge