Opinion
No. 632 C.D. 2013
11-18-2013
Thomas A. Giarrizzo Jr., Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Thomas A. Giarrizzo, Jr., (Claimant) petitions this Court for review of an order of the Unemployment Compensation Board of Review (Board) holding him ineligible to receive unemployment compensation benefits under Section 402(e) of the Unemployment Compensation Law (the Law). We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, § 402(e), as amended, 43 P.S. § 802(e). Section 402(e) provides that an employee shall be ineligible for compensation for any week "[i]n which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work . . . ." 43 P.S. § 802(e).
Claimant was employed by Mount Airy Casino Resort (Employer) as a public area attendant from April 18, 2011 through October 29, 2012. (Record Item (R. Item) 14, Board Decision and Order, Findings of Fact (F.F.) ¶1; R. Item 8, Hearing Transcript (H.T.) at 5-7.) Prior to October 29, 2012, Claimant had received several disciplinary actions from Employer, including a warning and a suspension for incidents involving insubordinate conduct. (R. Item 14, F.F. ¶¶2-3; R. Item 8, H.T. at 10-11; R. Item 3, Employer Separation Information, Service Center Exs. 22, 27-31, 37.) Employer's work rules and policies required employees to request permission from a supervisor before leaving work early. (R. Item 14, Board Decision and Order at 3; R. Item 8, H.T. at 8-10.)
On October 29, 2012, the day that Hurricane Sandy struck, Claimant was scheduled to work from 3:00 p.m. to 11:00 p.m. (R. Item 14, F.F. ¶4; R. Item 8, H.T. at 13-14.) Before reporting to work, Claimant called the manager of his department and asked whether Employer would be closed because of Hurricane Sandy. (R. Item 14, F.F. ¶5; R. Item 8, H.T. at 15.) The manager told Claimant that Employer was open, but that Claimant could report off if he was concerned, in which case he would be assessed one attendance point unless Employer determined that there was a weather emergency. (R. Item 14, F.F. ¶¶5-6; R. Item 8, H.T. at 15.) Although he had a good attendance record and his job would not have been in jeopardy if he reported off, Claimant reported to work. (R. Item 14, F.F. ¶7; R. Item 8, H.T. at 15-16, 34, 43.)
During his shift, at approximately 3:45 p.m., Claimant told his supervisor that a security guard had told him that the highways were closing because of the storm, but when his supervisor asked which security guard gave him that information, Claimant said he did not know. (R. Item 14, F.F. ¶¶8-9; R. Item 8, H.T. at 18, 22.) Claimant did not ask his supervisor for permission to leave at that time or at any other time during his shift. (R. Item 14, F.F. ¶13; R. Item 8, H.T. at 18-19.) Around 8:00 p.m., Claimant asked a co-worker if he could use her radio to notify the supervisor that he was leaving. (R. Item 14, F.F. ¶11; R. Item 8, H.T. at 23-25; R. Item 3, Employer Separation Information, Service Center Ex. 19.) Claimant told the co-worker that he did not care what anyone said and that the department manager "can kiss my a--." (R. Item 14, F.F. ¶11; R. Item 8, H.T. at 23-24; R. Item 3, Employer Separation Information, Service Center Ex. 19.) At approximately 8:16 p.m., Claimant punched out before the end of his shift without requesting permission from his supervisor. (R. Item 14, F.F. ¶13; R. Item 8, H.T. at 19-20.) Claimant told his supervisor that he was leaving, and the supervisor told Claimant that he could not just walk out without requesting permission. (R. Item 14, F.F. ¶¶12-15; R. Item 8, H.T. at 19-20.) Claimant, in response, told the supervisor that he did not care and left. (R. Item 14, F.F. ¶15; R. Item 8, H.T. at 19-20.) At the time Claimant left, Employer was open for business and had customers. (R. Item 8, H.T. at 22.) None of the other employees on Claimant's shift on October 29, 2012 left early. (R. Item 8, H.T. at 16, 21, 26.)
The next day, the supervisor reported Claimant's leaving work without permission to the department manager. (R. Item 8, H.T. at 16-17; R. Item 3, Employer Separation Information, Service Center Exs. 16-17.) On October 31, 2012, when Claimant next reported to work, he stated that he left work early "due to bad weather condition" and "due to personal safety." (R. Item 14, F.F. ¶17; R. Item 8, H.T. at 40-42; R. Item 3, Employer Separation Information, Service Center Ex. 18.) Employer discharged Claimant for walking out on his shift and making the inappropriate comment concerning his department manager. (R. Item 14, F.F. ¶18; R. Item 8, H.T. at 8-10; R. Item 3, Employer Separation Information, Service Center Ex. 14.)
Claimant filed for unemployment benefits and the Unemployment Compensation Service Center found Claimant eligible. The Service Center found that Employer sustained its burden of showing willful misconduct, but that Claimant had shown good cause for his actions. (R. Item 4, Service Center Notice of Determination.) Employer appealed and the referee conducted a hearing at which Claimant was represented by counsel and testified, several witnesses for Employer testified, and documents concerning the events surrounding Claimant's discharge and concerning his disciplinary history were introduced into evidence. The referee reversed the Service Center's determination and held that Claimant was ineligible for benefits because of willful misconduct. (R. Item 9, Referee Decision and Order at 2.)
Claimant appealed to the Board. On March 21, 2013, the Board issued a Decision and Order affirming the referee's denial of benefits. The Board resolved the conflicts between Claimant and Employer's witnesses in favor of Employer. (R. Item 14, Board Decision and Order at 3.) The Board found that Claimant left work early without requesting permission or explaining why he needed to leave and expressed to his co-worker that the department manager could "kiss my a--." (R. Item 14, Board Decision and Order at 3 & F.F. ¶¶8-16.) The Board concluded that this behavior constituted willful misconduct, that Claimant had not shown good cause for his conduct, and that Claimant was therefore ineligible for benefits under Section 402(e) of the Law. (R. Item 14, Board Decision and Order at 3-4.) Claimant timely filed a petition for review appealing the Board's order to this Court.
Our scope of review of the Board's decision is limited to determining whether errors of law were committed, constitutional rights or agency procedures were violated, and necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; Temple University v. Unemployment Compensation Board of Review, 565 Pa. 178, 182 n.1, 772 A.2d 416, 418 n.1 (2001). --------
In unemployment compensation cases, the burden of proving willful misconduct is on the employer. Caterpillar, Inc. v. Unemployment Compensation Board of Review, 550 Pa. 115, 123, 703 A.2d 452, 456 (1997); Grand Sport Auto Body v. Unemployment Compensation Board of Review, 55 A.3d 186, 190 (Pa. Cmwlth. 2012) (en banc); Walsh v. Unemployment Compensation Board of Review, 943 A.2d 363, 368 (Pa. Cmwlth. 2008). To prove willful misconduct, the employer must show: (1) wanton or willful disregard of the employer's interests, (2) deliberate violation of the employer's rules, (3) disregard of standards of behavior that an employer can rightfully expect from an employee, or (4) negligence that indicates an intentional disregard for the employer's interests or the employee's duties or obligations. Temple University v. Unemployment Compensation Board of Review, 565 Pa. 178, 182, 772 A.2d 416, 418 (2001); Caterpillar, Inc., 550 Pa. at 123, 703 A.2d at 456; Grand Sport Auto Body, 55 A.3d at 190; Walsh, 943 A.2d at 369.
If the employer shows that the claimant violated a work rule or disregarded standards of behavior that an employer can rightfully expect, the burden shifts to the claimant to demonstrate good cause for his conduct. Grand Sport Auto Body, 55 A.3d at 190; Department of Corrections v. Unemployment Compensation Board of Review, 943 A.2d 1011, 1015 (Pa. Cmwlth. 2008); Walsh, 943 A.2d at 369. Whether a claimant's actions constitute willful misconduct and whether the claimant has shown good cause for his actions are questions of law fully reviewable on appeal. Grand Sport Auto Body, 55 A.3d at 190; Department of Corrections, 943 A.2d at 1015-16.
Here, Employer clearly satisfied its burden of showing willful misconduct. It is well established that leaving work early without permission constitutes willful misconduct. Grand Sport Auto Body, 55 A.3d at 190; Grispino v. Unemployment Compensation Board of Review, 472 A.2d 288, 289 (Pa. Cmwlth. 1984); Simmons v. Unemployment Compensation Board of Review, 429 A.2d 121, 122 (Pa. Cmwlth. 1981); Jackamonis v. Unemployment Compensation Board of Review, 408 A.2d 581, 582 (Pa. Cmwlth. 1979); Dolan v. Unemployment Compensation Board of Review, 381 A.2d 1323, 1324 (Pa. Cmwlth. 1978). "Employers have 'the right to expect that ... employees will attend work when they are scheduled, that they will be on time, and that they will not leave work early without permission.'" Grand Sport Auto Body, 55 A.3d at 190 (quoting Fritz v. Unemployment Compensation Board of Review, 446 A.2d 330 (Pa. Cmwlth. 1982)). Use of vulgar language directed at a superior likewise constitutes willful misconduct, unless provoked by the superior's language or conduct toward the claimant. Leone v. Unemployment Compensation Board of Review, 885 A.2d 76, 81 (Pa. Cmwlth. 2005); Allen v. Unemployment Compensation Board of Review, 638 A.2d 448, 450-51 (Pa. Cmwlth. 1994); Viglino v. Unemployment Compensation Board of Review, 525 A.2d 450, 453 (Pa. Cmwlth. 1987).
The only question is whether Claimant met his burden of demonstrating good cause for his behavior on October 29, 2012. To prove good cause, the claimant must demonstrate that his actions were justifiable and reasonable under the circumstances. Grand Sport Auto Body, 55 A.3d at 190; Department of Corrections, 943 A.2d at 1015; Walsh, 943 A.2d at 369. Claimant argues that he had good cause to leave early because he was worried about his father, who was recovering from surgery, being alone in the storm. (Petitioner's Br. at 5, 8.) The Board, however, found that Claimant's version of events was not credible and that Claimant did not leave early to take care of his father. (R. Item 14, Board Decision and Order at 3-4 & F.F. ¶16.) Those findings are supported by substantial evidence. (R. Item 8, H.T. at 22, 26, 40-42; R. Item 3, Employer Separation Information, Service Center Ex. 18.) Indeed, Claimant made no reference whatsoever to concern about his father or to his father's condition when he gave Employer his account of the incident on October 31, 2012, when he was next at work. (R. Item 14, F.F. ¶17; R. Item 8, H.T. at 40-42; R. Item 3, Employer Separation Information, Service Center Ex. 18.) It is therefore the Board's findings, not Claimant's contentions, that determine whether Claimant showed good cause for his conduct. Bruce v. Unemployment Compensation Board of Review, 2 A.3d 667, 671-72 (Pa. Cmwlth. 2010); Ductmate Industries, Inc. v. Unemployment Compensation Board of Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008).
Under the facts found by the Board, Claimant did not show good cause for either his departure or his vulgar, insubordinate comment concerning his department manager. Claimant did not request permission to leave or explain to his supervisor why he felt that he needed to leave, but simply announced that he was leaving. (R. Item 14, Board Decision and Order at 3 & F.F. ¶¶8-16.) While the storm may well have been stressful and could have justified a request for permission to leave, the fact that an employee is justifiably worried or distressed does not constitute good cause for disregarding his obligations to communicate with his supervisors and explain his need to leave before simply walking out. Grispino, 472 A.2d at 289-90 (claimant's concern about power being turned off in his home was not good cause for failure to communicate with supervisor concerning his need to leave early); Dulgerian v. Unemployment Compensation Board of Review, 439 A.2d 1342, 1344 (Pa. Cmwlth. 1982) (claimant's anxiety over diagnosis of possible skin cancer was not good cause for failure to communicate with supervisor concerning absence). The fact that a claimant may be legitimately upset likewise is not good cause for profanity toward superiors where the superiors did not provoke the language by abusive or intimidating behavior. See, e.g., Leone, 885 A.2d at 79, 81 (claimant's profanity toward his superiors constituted willful misconduct even though he was physically ill).
Accordingly, we affirm the order of the Board.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 18th day of November, 2013, the order of the Unemployment Compensation Board of Review in this matter is hereby AFFIRMED.
/s/_________
JAMES GARDNER COLINS, Senior Judge