Opinion
No. 1292 C.D. 2012
11-30-2012
Freeland Borough, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Freeland Borough (Employer) petitions this Court for review of the Unemployment Compensation Board of Review's (UCBR) June 29, 2012 order affirming the Referee's decision granting Scott D. Michalesko (Claimant) unemployment compensation (UC) benefits. The sole issue for this Court's review is whether there was sufficient evidence to prove that Claimant's conduct was inconsistent with acceptable standards of behavior, and directly affected his ability to perform his job. We affirm.
Claimant was employed as a police officer beginning on January 3, 2000. He was suspended from duty on January 3, 2012 as a result of an off-duty incident that occurred on December 22, 2011. The record reveals that, while off-duty and at his home on December 22, 2011, Claimant became upset about a letter he received from Borough Council. Claimant's daughter discovered Claimant crying, and holding his personal revolver saying, "I can't believe that they are doing this to me." Notes of Testimony, March 22, 2012 (N.T.) at 31. Claimant's daughter took the gun away from him, and he was taken to the hospital. The Pennsylvania State Police and Employer were notified. Because Employer did not immediately know Claimant's whereabouts after he left his house, Employer placed its municipal offices on lock down, and dispatched an officer to intercept Claimant's vehicle. Employer was subsequently notified that Claimant was at the hospital. Claimant remained at the hospital for approximately 6½ hours, during which he briefly spoke with a counselor. He was released with instructions to report to the staff psychiatrist, Jane Jesse, the next day. Claimant testified that he neither threatened suicide nor placed the gun to his head. Claimant stated that he did not threaten anyone with the gun.
Claimant followed-up with Dr. Jesse on December 23, 2011, and continued to see her for short-term counseling. On January 10, 2012, Claimant was also seen by Peter A. Feinstein, M.D., who released Claimant to return to work effective January 11, 2012. According to Dr. Jesse's January 13, 2012 report, Claimant "suffered an acute stress reaction with anxiety from issues at his work place." N.T. Ex. 5, Michalesko 3. According to Dr. Jesse's report, Claimant "did not present any psychiatric issue or symptoms[] which would preclude him f[rom] employment." N.T. Ex. 5, Michalesko 3.
A suspension/removal hearing was held on January 31, 2012. On February 6, 2012, Employer discharged Claimant for conduct unbecoming a police officer, and for allegedly violating Employer's policy. Claimant filed for UC benefits. The Scranton UC Service Center denied Claimant benefits pursuant to Section 3 of the Unemployment Compensation Law (Law). Claimant appealed, and a hearing was held on March 22, 2012, following which the Referee reversed the UC Service Center's determination and granted Claimant benefits. Employer appealed to the UCBR. By decision and order issued June 29, 2012, the UCBR affirmed the Referee's decision. Employer appealed to this Court.
Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 752.
This Court's review is limited to determining whether the findings of fact were supported by substantial evidence, whether constitutional rights were violated, or whether errors of law were committed. Brunswick Hotel & Conference Ctr., LLC v. Unemployment Comp. Bd. of Review, 906 A.2d 657 (Pa. Cmwlth. 2006).
Employer contends that the UCBR erred by not finding that the evidence was sufficient to show that Claimant's conduct was contrary to acceptable standards of behavior, and that such action directly reflected upon his ability to perform his assigned duties. We disagree.
This Court has held:
Section 3 renders a claimant ineligible for benefits for non-work-related misconduct. Under Section 3 the employer must demonstrate 1) that the claimant's conduct was contrary to acceptable standards of behavior and 2) that the claimant's unacceptable conduct directly affects or reflects upon the claimant's ability to perform his assigned duties.Frazier v. Unemployment Comp. Bd. of Review, 833 A.2d 1181, 1184-85 (Pa. Cmwlth. 2003) (citation omitted).
Employer avers that the testimony of councilman John Budda (Budda) and police officer Matthew Williams (Officer Williams) is sufficient to prove that Claimant's conduct was contrary to acceptable standards of behavior, and that this conduct directly reflected upon his ability to perform his assigned duties. Budda testified that the morale of the police department and the citizens was adversely affected by the December 22, 2011 incident, particularly in light of the lockdown. He explained that Section 4 of the police department's Standard Operating Procedures states:
[A]n Officer is considered on duty at all times when in the Borough of Freeland. It is required that each member,
whether in uniform or not, conduct themselves [sic] in such a manner as to reflect most favorably upon the Department. Any act or conduct which tends to demean the Department or reflect discredit upon the individual member shall be considered an act of misconduct and will result in disciplinary action being taken against the offending member.N.T. Ex. 7 at 4. Accordingly, Budda concluded that Claimant's behavior was unacceptable for a member of the police department.
Officer Williams testified that Claimant's actions on December 22, 2011 affected Claimant's ability to perform his duties, because "we have to be able to think with a cool head and I know sometimes it gets tough for us being out there, but people . . . depend on us to . . . take care of their situations and their problems . . . ." N.T. at 26. He also testified that Claimant's actions were not acceptable for an officer, and that media coverage could have adversely affected the public's perception of the department.
Williams acknowledged, however, that there was no media coverage of the incident, and those citizens who learned of the incident by police scanner were not given the officer's name. --------
The Referee concluded that Employer failed to prove that Claimant's conduct was inconsistent with acceptable standards of behavior, and that such action directly affected his ability to perform his job. Specifically, the Referee was not satisfied that Employer had met its burden based on his determination that "the fact that [Claimant] suffered an emotional breakdown for which he sought treatment at a local hospital and then was released does not in and of itself render [Claimant] incapable of performing his duties as a [B]orough police officer." Employer's Br., App. A at 4. The Referee further noted that "there was no medical testimony or evidence that [Claimant], due to the alleged action, was incapable of performing his duties." Employer's Br., App. A at 4. The UCBR adopted the Referee's findings and conclusions. "Findings made by the [UCBR] are conclusive and binding on appeal if the record, examined as a whole, contains substantial evidence to support the findings." Owoc v. Unemployment Comp. Bd. of Review, 809 A.2d 441, 443 (Pa. Cmwlth. 2002). "Substantial evidence is evidence which a reasonable mind might accept as adequate to support a conclusion." Wheelock Hatchery, Inc. v. Unemployment Comp. Bd. of Review, 648 A.2d 103, 105 n.3 (Pa. Cmwlth. 1994). Here, the substantial evidence supports the UCBR's finding that Employer did not meet its burden. Accordingly, the UCBR did not err by affirming the Referee's decision.
For the reasons stated herein, the UCBR's order is affirmed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 30th day of November, 2012, the Unemployment Compensation Board of Review's June 29, 2012 order is affirmed.
/s/_________
ANNE E. COVEY, Judge