Opinion
No. 1519 C.D. 2012
06-19-2013
Johnnie W. Horne, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Johnnie W. Horne (Claimant) petitions for review of the July 16, 2012 order of the Unemployment Compensation Board of Review (Board) affirming a referee's determination that Claimant is ineligible for unemployment compensation benefits pursuant to section 402(e) of the Unemployment Compensation Law (Law). We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937), 2897, as amended, 43 P.S. §802(e). Section 402(e) provides than an employee shall be ineligible for compensation for any week in which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work.
The Law does not define the term willful misconduct, but our courts have defined it as including: wanton or willful disregard for an employer's interests; deliberate violation of an employer's rules; disregard for standards of behavior which an employer can rightfully expect of an employee; or negligence indicating an intentional disregard of the employer's interest or an employee's duties or obligations. Navickas v. Unemployment Compensation Board of Review, 567 Pa. 298, 304, 787 A.2d 284, 288 (2001).
Claimant was employed by Philadelphia Biblical University (Employer) as an overnight security supervisor from March 31, 2008 until March 11, 2011. (Finding of Fact No. 1.) On two occasions prior to March 6, 2011, Claimant requested permission from his supervisor, Christopher Lloyd, Employer's Director of Safety and Security, to carry a firearm at work. (Finding of Fact No. 2.) Both times, Lloyd denied Claimant's requests. (Finding of Fact No. 3.) On March 6, 2011, Claimant became ill and disoriented while at work and required emergency medical assistance. (Finding of Fact No. 4.) While emergency medical personnel were assisting Claimant, Lloyd discovered that Claimant was carrying a semi-automatic firearm in a holster at his side. (Finding of Fact No. 5.) Employer terminated Claimant for insubordination on March 11, 2011. (Finding of Fact No. 6.) The local service center granted Claimant's application for unemployment benefits, concluding that Employer did not provide information to substantiate willful misconduct on Claimant's part. (Record Item 3.) Employer appealed, and a referee held a hearing on February 28, 2012. Lloyd testified that on two separate occasions in 2010, Claimant advised Lloyd that he was "Act 235 certified" and requested permission to carry a weapon while on duty. (Notes of Testimony (N.T.) at 8.) Lloyd stated that on both occasions he told Claimant that he had not yet received authority from the school president to give his supervisors permission to carry weapons, and, therefore, Claimant could not carry his weapon at work. Lloyd added that "there was no other questioning other than those two conversations that we had. And he did not go away questioning why or anything else." (N.T. at 9.)
Lloyd testified that after he started working at the university, the president asked if he would be willing to carry a weapon and he agreed.
[A]s I was going through [Act 235] training, [Claimant] approached me at one point [and] informed me that he was Act 235 certified and [asked if he could carry] a weapon. I told him I had not received any authority from the President stating that he wanted supervisors to carry weapons yet. I said no, he could not carry his weapon. Later in the year we hired an Assistant Director and he was going through Act 235 training. . . . [Claimant] approached me again. Again told me he was Act 235 certified. Asked if he could carry a weapon since we were both certified to do so. I again told him no. . . . I have not received any further information from the President stating that he wanted anybody more than myself or the Assistant Director to . . . [and] that he could not carry a weapon.(N.T. at 8.)
In addition, Mary Boyer, Employer's Vice President of Human Resources, testified that Employer's employee handbook specifically states that employees are not allowed to possess firearms at work and that Claimant had signed a document acknowledging receipt of the handbook. In relevant part, the employee handbook provides that examples of conduct which may result in disciplinary action include non-compliance with policies or procedures; possession of dangerous materials, weapons, firearms, or explosives; violation of health, safety, and/or security rules; and insubordination. (Employer Exhibit No. 1.) The acknowledgement signed by Claimant, (Employer's Exhibit No. 2) states in part as follows:
Should I not understand any section of the Handbook, I have been advised that questions related to the Handbook and the policies contained therein should be directed to the Director of Human Resources. I understand that failing to seek clarification about [Employer's] employment policies does not act to exclude me from having to abide by a particular employment policy or policies.
Claimant disputed Lloyd's testimony, stating that only one conversation concerning Claimant carrying a weapon at work had ever taken place. (N.T. at 12.) Claimant testified that it was Lloyd who broached this topic and that Lloyd said "he didn't see any reason why his Supervisor cannot carry a weapon." Id. Claimant acknowledged that he had read the employee handbook but testified that he understood that Lloyd did not object to his carrying the firearm. (N.T. at 13.)
The referee resolved the conflicts in the testimony in Employer's favor and found that Claimant was twice denied permission to carry a weapon at work but did so anyway and was discharged for insubordination. The referee concluded that Claimant did not have justification for his conduct and therefore was ineligible for benefits under section 402(e) of the Law.
Claimant appealed the referee's decision to the Board, arguing that he truly believed he was allowed to carry the weapon based on his conversations with Lloyd. Claimant also argued that Employer's policy is neither clear, due to its language that such conduct may result in discipline, nor absolute, given the fact that Lloyd carries a firearm. Finally, Claimant contended that he had good cause to carry the weapon because he was an overnight supervisor of safety and security.
By decision and order dated July 16, 2012, the Board affirmed the referee's decision, adopting the referee's findings and conclusions of law. The Board added that any justification that Claimant may have had for deliberately disobeying Employer was nullified by Claimant's failure to engage Employer in informative communication. (Record Item 24.)
The Board made no findings concerning Employer's policy or Mary Boyer's testimony.
On appeal to this Court, Claimant contends that Employer's policy prohibiting the possession of firearms on campus is unreasonable in light of the exceptions made for his supervisor and the school's Assistant Director. More specifically, Claimant asserts that by allowing his supervisor, the Director of Safety and Security, and Employer's Assistant Director to carry firearms at work, Employer created ambiguity and confusion.
Our scope of review is limited to determining whether constitutional rights have been violated, whether errors of law were committed, or whether findings of fact are supported by substantial evidence. Procyson v. Unemployment Compensation Board of Review, 4 A.3d 1124, 1127 n.4 (Pa. Cmwlth. 2010). --------
However, the Board found that Claimant was discharged for insubordination for having his firearm at work after Lloyd told Claimant on two separate occasions that he did not have permission to carry his weapon on campus. (Findings of Fact Nos. 2, 3.) "Disregarding clear and simple instructions without good cause constitutes willful misconduct. The refusal of an employee to follow orders will constitute willful misconduct unless the orders are unreasonable or the employee has a good reason for his actions." Hartman v. Unemployment Compensation Board of Review, 455 A.2d 756, 757 (Pa. Cmwlth. 1983) (holding that the claimant's disregard of instructions to spray-buff a floor and his decision to dry-buff it instead, in the belief that the latter method would be faster, constituted willful misconduct). Here, Claimant's testimony that he requested permission to carry his firearm on campus confirms his understanding that he needed permission to do so. As found by the Board, Claimant's supervisor unambiguously denied Claimant's requests for permission to carry a weapon on two separate occasions, and Claimant deliberately did so anyway.
Claimant argues that the finding that he disobeyed his supervisor's instructions is not supported by the evidence. Claimant further contends that his conduct and the conduct of his supervisors support his assertion that he believed he was permitted to carry the firearm. However, in making these arguments, Claimant essentially argues that the Board should have believed his version of the facts, and it is well settled that in unemployment compensation proceedings, the Board is the ultimate fact-finder, empowered to resolve conflicts in the evidence and to determine the credibility of witnesses. Kelly v. Unemployment Compensation Board of Review, 776 A.2d 331, 336 (Pa. Cmwlth. 2001). Findings made by the Board are conclusive on appeal if the record, when examined as a whole, contains substantial evidence to support those findings. Id. Here, the Board credited the testimony offered by Employer, and that testimony constitutes substantial evidence supporting the Board's findings.
We reject Claimant's contention that Lloyd's clear and facially reasonable directive was rendered vague or unreasonable by the fact that Employer permits the Director of Safety and Security and the Assistant Director of the school to carry a firearm on duty. In addition, while Claimant argues that as a night security supervisor he had good cause for carrying a weapon on campus, Claimant does not assert that he discussed those reasons with Employer, and, as the Board correctly observed, this failure to inform Employer of his reason for noncompliance vitiates even what could otherwise have been good cause for noncompliance. Klapec Trucking Co. v. Unemployment Compensation Board of Review, 503 A.2d 1122, 1125 (Pa. Cmwlth. 1986) (holding that a trucker's failure to inform his employer of his reason for refusing an order to unload a truck vitiated what would otherwise have been good cause for his noncompliance); Bortz v. Unemployment Compensation Board of Review, 464 A.2d 609, 610-11 (Pa. Cmwlth. 1983) (holding that the claimant's failure to inform his employer of the reason he did not comply with its rule was a failure to demonstrate good cause for his conduct).
For the foregoing reasons, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 19th day of June, 2013, the order of the Unemployment Compensation Board of Review, dated July 16, 2012, is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge