Opinion
No. 530 C.D. 2014
09-05-2014
Joshua D. Hickey, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Joshua D. Hickey (Claimant), pro se, petitions for review of an adjudication of the Unemployment Compensation Board of Review (Board) denying his claim for unemployment compensation benefits. In doing so, the Board affirmed the decision of the Referee that Claimant was ineligible for benefits under Section 402(e) of the Unemployment Compensation Law (Law) by reason of his willful misconduct. We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). In relevant part, Section 402(e) provides that "[a]n employe 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 full-time as a courier for Vans Express Inc. (Employer), an independent contractor that partners with DHL Express to pick up and deliver packages for DHL's customers. Claimant was discharged on May 14, 2013, for insubordination for the stated reason that he failed to maintain contact with Employer while on his scheduled route. Claimant applied for unemployment benefits, which were denied by the UC Service Center. Claimant appealed and a hearing was held by the Referee.
At the Referee's hearing, Jeff VanDenHaute, an Independent Contractor Operations Manager for Employer, testified that communication with its couriers is vital to Employer's business. VanDenHaute explained that, because Employer coordinates deliveries with airplanes, Employer must be apprised of a courier's schedule and expected arrival time at the airport so there will be no delay in DHL's outbound flights. Notes of Testimony, November 15, 2013, at 6 (N.T. ___). Employer issued a cellular phone to Claimant so that he could communicate with Employer on the status of his route, whether he was running late, and at what time he anticipated arriving at the airport upon completion of his route.
On the date in question, May 13, 2013, Employer had estimated Claimant should be able to complete his assigned route and return to its airport headquarters between 8:00 p.m. and 8:30 p.m. Employer's last contact with Claimant that day was at 8:00 p.m., at which time Claimant reported he had four more deliveries and estimated his arrival at the airport between 8:45 p.m. and 9:00 p.m. Claimant did not return to the airport until 9:45 p.m., which caused a delay in DHL's outbound flight. VanDenHaute testified that Employer attempted to call Claimant on his company cellular phone approximately 30 times between 8:20 p.m. and 9:45 p.m. Claimant did not answer any of the calls. The next morning, Employer held a predisciplinary meeting with Claimant. When asked why he was late and did not answer his phone the previous night, Claimant replied that "it's all about time and money." N.T. at 7. Employer discharged Claimant for failing to comply with Employer's communication procedures.
Claimant testified that he was delayed on the evening of May 13, 2013, because he had trouble contacting his customers and needed to rearrange his route to make pickups and deliveries when the customers were available. He also stated that his company cell phone "was having troubles because it was dying on me frequently." N.T. at 9. Claimant could not explain why he was able to call customers but not answer calls from Employer. Claimant acknowledged that he was trained and instructed to timely communicate any and all delays to Employer but offered no explanation for his failure to do so on May 13, 2013.
The Referee found that Claimant was aware of Employer's policy requiring couriers to maintain communication with Employer and violated that policy without good cause. Accordingly, the Referee held that Claimant was ineligible for benefits under Section 402(e) of the Law, 43 P.S. §802(e). Claimant appealed to the Board, arguing that he had a history of excellent work performance and did not deliberately violate Employer's rules. The Board discredited Claimant's testimony that he was experiencing technical problems with his company cell phone on May 13, 2013. The Board credited VanDenHaute's testimony, which established that Employer has a work rule requiring employees to maintain communication, Claimant was aware of the rule, and violated the rule without good cause. Accordingly, the Board affirmed the Referee's decision. Claimant now petitions for this Court's review.
On appeal, Claimant argues that the Board erred in concluding that Employer proved Claimant committed willful misconduct by failing to maintain communication with Employer on the evening of May 13, 2013. Claimant also asserts that he had good cause for violating Employer's rule because his company cell phone had died. Claimant further challenges the Board's factual finding that he was upset because he had not received a promotion or raise.
Our scope of review is whether the Board's adjudication is in violation of constitutional rights, errors of law were committed, or whether findings of fact are supported by substantial evidence. Kirkwood v. Unemployment Compensation Board of Review, 525 A.2d 841, 843 (Pa. Cmwlth. 1987). --------
Although not statutorily defined, the courts have determined that "willful misconduct" means the following:
(1) an act of wanton or willful disregard of the employer's interest;Altemus v. Unemployment Compensation Board of Review, 681 A.2d 866, 869 (Pa. Cmwlth. 1996). "Whether or not an employee's actions constitute willful misconduct is a question of law subject to [judicial] review." Rossi v. Unemployment Compensation Board of Review, 676 A.2d 194, 197 (Pa. Cmwlth. 1996).
(2) a deliberate violation of the employer's rules;
(3) a disregard of standards of behavior which the employer has a right to expect of an employee; [or]
(4) negligence indicating an intentional disregard of the employer's interest or of the employee's duties and obligations to the employer.
Where a claimant's willful misconduct is alleged to be the result of a violation of a work rule, the burden is on the employer to prove that the claimant was aware of the existence of the work rule and that the claimant violated the work rule. Bruce v. Unemployment Compensation Board of Review, 2 A.3d 667, 671 (Pa. Cmwlth. 2010). Once the employer meets its burden, the burden shifts to the claimant to establish good cause for his actions. Id. A claimant has good cause if his actions are "justifiable and reasonable under the circumstances." Id. (quoting Docherty v. Unemployment Compensation Board of Review, 898 A.2d 1205, 1208-09 (Pa. Cmwlth. 2006)).
The Board is the ultimate finder of fact and has authority to weigh the evidence and determine credibility of witnesses. Guthrie v. Unemployment Compensation Board of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999). The Board's findings are conclusive on appeal so long as the record, when viewed in its entirety, contains substantial evidence to support those findings. Id. Substantial evidence has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a factual finding. Korpics v. Unemployment Compensation Board of Review, 833 A.2d 1217, 1219 n.1 (Pa. Cmwlth. 2003). This court reviews the evidence in the light most favorable to the party who prevailed before the Board and gives that party the benefit of all inferences that can be logically and reasonably drawn from the testimony. Chapman v. Unemployment Compensation Board of Review, 20 A.3d 603, 607 (Pa. Cmwlth. 2011).
Here, the Board's determination that Claimant committed willful misconduct is supported by substantial evidence. VanDenHaute's testimony established that Employer has a rule requiring couriers to maintain contact with Employer and inform Employer if they will be delayed in finishing their route. Claimant acknowledged his awareness of the rule by responding affirmatively when asked "would you acknowledge the fact that you were trained and instructed to communicate any and all delays, timely to station management?" N.T. at 10. Finally, VanDenHaute credibly testified as follows regarding Claimant's violation of the work rule:
From that time, we had called [Claimant] close to 30 times. We provide, not only [Claimant], but all of our couriers, personal cell phones to use on route for communication and there was a zero answer and that includes from my own self, I called [Claimant], close to 20 times myself with all the, you know, documentation of calling him and reaching out without an answer.N.T. at 6. In sum, the Board did not err in holding that Employer met its burden of proving Claimant violated a known work rule.
Claimant argues that he demonstrated good cause for his failure to maintain communication because his company cell phone had died and he had not been issued a car charger to recharge it. Claimant's testimony on this issue was inconsistent. For example, Claimant testified that his malfunctioning cell phone prevented him from communicating with Employer on the night of May 13, 2013, but he also acknowledged that he used the phone to contact customers that evening. The Board rejected Claimant's testimony as incredible. In short, the Board did not err in finding that Claimant lacked good cause for violating Employer's work rule.
The Board found that Claimant's disappointment at not receiving a promotion or raise was not good cause for his misconduct. Claimant argues that the record does not support the Board's finding. We disagree. When asked for his side of the story regarding his behavior on May 13, 2013, Claimant testified:
My side of the story is I was led to believe that there was going to be future jobs for myself, advancements, positions, etcetera, as well as an increased pay raise, which actually was well overdue, since the month of February.N.T. at 8. Claimant later returned to the subject and stated
that they had been leading me on now for some time for a management position that I was looking forward to.N.T. at 9. Based on Claimant's testimony, the Board did not err in finding Claimant was disappointed he had not received an expected promotion or raise.
Accordingly, the order of the Board is affirmed.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 5th day of September, 2014, the order of the Unemployment Compensation Board of Review dated March 24, 2014, is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT,