Opinion
No. 1342 C.D. 2013
01-17-2014
Denise Frost, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Denise Frost (Claimant) petitions for review of the July 11, 2013, order of the Unemployment Compensation Board of Review (UCBR) that denied Claimant unemployment compensation (UC) benefits. The UCBR determined that Claimant was ineligible for UC benefits under section 402(e) of the Unemployment Compensation Law (Law) due to her discharge from work for willful misconduct. We 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 shall be ineligible for UC benefits 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).
Claimant worked as a full-time server for Harold Inn (Employer) from August 2010 through February 23, 2013. (UCBR's Findings of Fact, No. 1.) On February 23, 2013, Claimant, whose food orders were coming out of the kitchen with mistakes, engaged in a heated argument with a kitchen staff member. (Id., No. 2.) Employer's manager told Claimant and the kitchen staff member to calm down and focus on providing orders to the guests. (Id., No. 3.) Claimant told the manager "I'm going to go back there and f**k him up." (Id., No. 4.) Employer determined that Claimant's comment constituted a threat of violence in the workplace. (Id., No. 5.) Employer discharged Claimant for threatening the kitchen staff member. (Id., No. 6.)
Claimant applied for UC benefits with the local service center, which denied benefits pursuant to section 402(e) of the Law. Claimant appealed to the referee, who conducted an evidentiary hearing. The referee reversed the decision of the service center and awarded Claimant UC benefits. Employer appealed to the UCBR, which made its own findings, reversed the decision of the referee, and concluded that Claimant engaged in willful misconduct. Claimant now petitions this court for review.
Our review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether the necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704. --------
Before this court, Claimant initially argues that the testimony of Employer's witnesses varied and that she did not use profanity. "[T]he UCBR is the ultimate fact finder and is empowered to make credibility determinations." Bell v. Unemployment Compensation Board of Review, 921 A.2d 23, 26 n.4 (Pa. Cmwlth. 2007). "Questions of credibility . . . are not subject to re-evaluation on judicial review." Id.
As Claimant acknowledges in her brief, James Milcoff testified that Claimant said, "I'm going to go back there and f[**]k him up." (Cl. Br. at 10.) Although Claimant testified that she did not use profanity, the UCBR credited the testimony of Employer's witness that she did, and this court will not disturb the UCBR's credibility determination.
Next, Claimant argues that Employer does not fairly and consistently enforce its policy prohibiting profanity in the workplace. Claimant, however, did not merely use profanity; she also threated violence against a co-worker.
"Willful misconduct" is defined as: (1) a wanton and willful disregard of the employer's interest; (2) a deliberate violation of the employer's rules; (3) a disregard of the standards of behavior that an employer rightfully can expect from its employees; or (4) negligence that manifests culpability, wrongful intent, evil design, or an intentional and substantial disregard of the employer's interests or the employee's duties and obligations. Oliver v. Unemployment Compensation Board of Review, 5 A.3d 432, 438 (Pa. Cmwlth. 2010) (en banc). "A work rule violation need not be shown where the behavior standard is obvious, and the employee's conduct is so inimical to the employer's best interests that discharge is a natural result." Tongel v. Unemployment Compensation Board of Review, 501 A.2d 716, 717 (Pa. Cmwlth. 1985). It is well settled that threats of harm toward a co-worker or supervisor constitute willful misconduct under the Law. See Sheets v. Unemployment Compensation Board of Review, 708 A.2d 884, 885 (Pa. Cmwlth. 1998); Andrews v. Unemployment Compensation Board of Review, 633 A.2d 1261, 1263 (Pa. Cmwlth. 1993).
Here, the UCBR credited the testimony of Employer's witness that Claimant threatened her co-worker. Once an employer meets its burden of showing willful misconduct, the burden shifts to the claimant to show that she had good cause. Perez v. Unemployment Compensation Board of Review, 736 A.2d 737, 741 n.5 (Pa. Cmwlth. 1999). Although Claimant argues that her co-worker provoked her threat of violence, the UCBR did not credit her testimony. Therefore, Claimant failed to show good cause for her action.
Accordingly, we affirm the UCBR's decision.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 17th day of January, 2014, we hereby affirm the July 11, 2013, order of the Unemployment Compensation Board of Review.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge