Opinion
No. 1089 C.D. 2011
04-05-2012
Stacie A. Hartman, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Stacie A. Hartman (Claimant) challenges the order of the Unemployment Compensation Board of Review (Board) which affirmed the referee's denial of benefits under Section 402(e) of the Unemployment Compensation Law (Law).
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e).
The facts, as initially found by the referee and confirmed by the Board, are as follows:
1. The claimant was employed from January 30, 2006 through February 6, 2011 as a full-time plate maker with Cenveo Corporation, earning $22.45 per hour with a .50 shift differential.
2. The claimant had been previously discharged by the employer and was rehired under a last chance agreement.
3. The terms of the last chance agreement provided, in part, that the claimant successfully complete a review period beginning November 16, 2009 and continue for 24 months.
4. During the review period, the claimant must adhere to the standards of conduct without fail or exception.
5. The last chance agreement provides that the employer reserves the right to terminate the claimant's employment at any time or without cause.
6. The claimant was aware of the last chance agreement.
7. The claimant works in an environment, which manufactures plates.
8. If a plate is miss-dyed or miss-printed, it is considered a 'ghost plate.'
9. On February 1, 2011, the claimant wrote a note that stated, 'Ghost Plates . . . Compliments of F. Quinn.'
10. On February 8, 2011, the employer asked the claimant if she wrote the note.
11. The claimant admitted to writing the note, but thought she had thrown it away.
12. The employer advised the claimant that the note was found posted on the plate itself and the employee referenced in the note had filed harassment charges.
13. The claimant informed the employer that the note was not intended for the employee to view but was an inside joke between herself and another co-worker.
14. The claimant was suspended upon further investigation of the note.
15. On February 9, 2011, the claimant met with the employee, indicated in the note, apologized for the note and requested the charges be dropped.
16. On February 17, 2011, the claimant was informed that she was discharged for violation of the last chance agreement and for violating the employer's standards of conduct.Referee's Decision, April 8, 2011, (Decision), Findings of Fact Nos. 1-16 at 1-2.
The referee determined:
In this case, the claimant was discharged and reinstated on a last chance agreement. The claimant was aware of the last chance agreement policy. The claimant wrote a note regarding a miss-printed plate that stated, 'Ghost Plate . . . Compliments of F. Quinn.' The note was intended as humor between the claimant and another co-worker and the note was discarded. The claimant did not display the note for anyone else. The employee who was identified on the note became aware that the note had been written and filed a harassment charge against the claimant. The claimant apologized to the co-worker. Clearly, as the claimant's actions were deliberate and violated the terms of the employer's last changes [sic] agreement, benefits were properly denied.Decision at 2.
The Board affirmed and determined that Claimant failed to present competent, credible evidence or testimony to establish good cause for her behavior which resulted in her termination.
Claimant contends that the Board's determination that she committed willful misconduct was unsupported by substantial evidence.
This Court's review in an unemployment compensation case is limited to a determination of whether constitutional rights were violated, errors of law were committed, or findings of fact were not supported by substantial evidence. Lee Hospital v. Unemployment Compensation Board of Review, 637 A.2d 695 (Pa. Cmwlth. 1994).
Whether a Claimant's conduct rises to the level of willful misconduct is a question of law subject to this Court's review. Lee Hospital v. Unemployment Compensation Board of Review, 589 A.2d 297 (Pa. Cmwlth. 1991). Willful misconduct is defined as conduct that represents a wanton and willful disregard of an Employer's interest, deliberate violation of rules, disregard of standards of behavior which an Employer can rightfully expect from the employee, or negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard for the Employer's interest or employee's duties and obligations. Frick v. Unemployment Compensation Board of Review, 375 A.2d 879 (Pa. Cmwlth. 1977). The Employer bears the burden of proving that it discharged an employee for willful misconduct. City of Beaver Falls v. Unemployment Compensation Board of Review, 441 A.2d 510 (Pa. Cmwlth. 1982). The Employer bears the burden of proving the existence of the work rule and its violation. Once the Employer establishes that, the burden then shifts to the Claimant to prove that the violation was for good cause. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 501 A.2d 1383 (1985).
Claimant initially asserts that Employer failed to establish she committed willful misconduct.
Jenny Rogers (Rogers), director of human resources for Cenveo Corporation (Employer) testified at hearing before the referee:
On February the 8th I received a visit from another co-worker who had filed harassment charges again [sic] Ms. Hartman [Claimant]. The charges were based on something that she had done on February the 1st. As Ms. Hartman [Claimant] said her position is a plate maker. She was making plates for a job called Circulation and she noticed that there was ghosting occurring on the plate. . . . But anyway while this process was going on Ms. Hartman wrote a note stating that the ghosting was compliments of this employee, Mr. Frank Quinn. And she put the notice somewhere. At some point the notice ended up being posted on the plates themselves. It was posted for several shifts and someone brought this to Mr. Quinn's attention which upset him greatly. Mr. Quinn felt like that he had been humiliated by Ms. Hartman and wanted to file charges against her. When Ms. Hartman came into work we brought her into my office. We had a conversation with her. She admitted she had written the note but thought she had thrown it away and somehow the note ended up being posted on the plates. Now during that conversation at one point Ms. Hartman also said I kept trying to remind myself that I needed to get that note wherever that note was.Notes of Testimony, March 31, 2011, (N.T.) at 6.
Rogers also explained that Claimant was working under a "last chance agreement:"
This last chance agreement was very clear and it was actually - Stacie [Claimant] had been terminated back in October of '09 and was going to at least be in review for her for two years. This agreement was very clear on what the specifics would be as far as Ms. Hartman [Claimant] returning to work and being allowed to remain at work and one of those - one of those stipulations was that she must adhere to the standards of conduct which require her to be respectful to other co-workers. And it also said that the continued employment would be based on a review period for 24 months and during that period she would be a model employee in all aspects of her job. And the last piece of this agreement
was that the union would waive all rights to file a grievance on her behalf during that period as well. So based on the fact that Ms. Hartman now had harassment charges against her, she fully admitted to writing the note although she did not leave it for Mr. Quinn to see he did see it. And she wrote the note. Based on that last chance agreement the company felt like they [sic] had nowhere else to go but to terminate her services because of the stipulations she was working under. Therefore she was, she was then discharged.N.T. at 7. Employer submitted the last chance agreement into evidence.
Employer established that under the "last chance agreement" Claimant was required to be a model employee and adhere to Employer's standards of conduct without fail. Employer further established that by writing the note and implicating another employee in the creation of the "ghost plate," Claimant violated that standard. This Court does not agree with Claimant that the Board erred when it found that Claimant committed willful misconduct.
Claimant next contends that even if Claimant violated Employer's work rule when she wrote the note, her action did not constitute willful misconduct because it was a de minimis offense. Contrary to Claimant's contention, this Court has held that a de minimis argument is meritless in cases which involve a deliberate violation of an employer's rules. Sheets v. Unemployment Compensation Board of Review, 708 A.2d 884 (Pa. Cmwlth. 1998).
Claimant also argues that the "last chance agreement" was over a year old so that her discharge was too remote from the misconduct. Claimant misapplies Tundel v. Unemployment Compensation Board of Review, 404 A.2d 434 (Pa. Cmwlth. 1979). In Tundel, Stephen E. Tundel was terminated from his employment twenty-five days after he fell asleep on the job. This Court held that "[a]n incident of willful misconduct cannot be so temporally remote from the ultimate dismissal and still be the basis for a denial of benefits for willful misconduct." Tundel, 404 A.2d at 436.
Here, while Claimant and Employer entered into the "last chance agreement" in November 2009, the agreement was scheduled to run for two years. During that time period, Claimant wrote the note about the ghost plate on February 1, 2011. Employer suspended Claimant pending the results of its investigation on February 8, 2011, and terminated Claimant on February 15, 2011. Claimant's termination took place a mere two weeks after she committed the act of willful misconduct.
Claimant appears to argue that she had good cause for committing the act of willful misconduct. However, the Board explicitly found that Claimant did not present any credible evidence that she had good cause for her action. In unemployment compensation proceedings, the Board is the ultimate fact-finding body empowered to resolve conflicts in evidence, to determine the credibility of witnesses, and to determine the weight to be accorded evidence. Unemployment Compensation Board of Review v. Wright, 347 A.2d 328 (Pa. Cmwlth. 1975). Findings of fact are conclusive upon review provided that the record, taken as a whole, provides substantial evidence to support the findings. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 378 A.2d 829 (1977). --------
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 5th day of April, 2012, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge