Opinion
No. 1924 C.D. 2010
06-24-2011
Elaine P. Kelly, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES R. KELLEY, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Elaine P. Kelly (Claimant) petitions for review of an adjudication of the Unemployment Compensation Board of Review (Board) finding her ineligible for benefits. In doing so, the Board affirmed the Referee's determination that Claimant's willful misconduct rendered her ineligible for benefits under Section 402(e) of the Unemployment Compensation Law (Law). Claimant contends that her behavior, speaking critically of the office in front of patients, did not constitute willful misconduct. We agree and reverse.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). It provides, in relevant part, 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 worked for several years as a phone operator for a medical practice, Hillmont G.I., P.C. (Employer). On March 22, 2010, Employer discharged her for insubordination. Claimant applied for unemployment benefits, and the UC Service Center denied her request. Claimant appealed, and a hearing was conducted by a Referee.
At the hearing, Andrew Mangler, Human Resources Manager, testified for Employer. He explained that Cristin Louridas, the Office Manager, and Dr. Stephen Matarazzo, one of the physicians in the office, made the decision to discharge Claimant. He, Louridas and Yolanda Johnson, Assistant Office Manager, effected the dismissal in a meeting with Claimant. Mangler stated that Johnson, the sole witness to Claimant's insubordination, would testify about that event.
Johnson testified that insubordination was a violation of Employer's employment policy. In support, she offered Employer's manual into evidence. It warned that disciplinary action, from a verbal warning to immediate termination, would follow "[i]nsubordination or refusal to carry out the instructions of the Company." Certified Record, Item No. 3, Exhibit 18 (C.R. ___). Johnson explained that all employees, including Claimant, were aware of the policy and had been provided a copy of the manual. She explained that Dr. Matarazzo made the decision to discharge Claimant, as opposed to taking other disciplinary steps.
Dr. Matarazzo did not testify, according to Johnson, because of his hospital duties.
Johnson then testified about the incident of Claimant's insubordination. She explained that on March 18, 2010, Dr. Matarazzo met with a patient, G.V., for the purpose of ending their physician-patient relationship. Johnson stated that when G.V. arrived for her appointment, she appeared coherent and was not slurring her words. G.V.'s dismissal meeting with Dr. Matarazzo lasted over an hour. After going to her car, G.V. returned, stating that she had lost the prescription just written for her. Dr. Matarazzo searched the office and G.V.'s car, but he was unable to find the missing prescription. He informed G.V. that he would not write another one.
To protect the patient's privacy, she was identified only by her initials.
G.V. left a second time but soon thereafter telephoned the office. Claimant took the call and told G.V. to return to the office. Claimant then announced to those around her that G.V. should not be driving; that Dr. Matarazzo should not have allowed her to leave the office; and that she was going to discuss the matter with Dr. Matarazzo. Johnson advised her not to bother the doctor because he was running behind schedule, because of his long meeting with G.V. and the search for the missing prescription. Claimant then shouted, in front of staff and patients, "[d]oes everyone hear this, I am against this." Reproduced Record at 16 (R.R. ___). Johnson told Claimant to sit down, and Claimant did so. This ended the matter.
Johnson testified that the next day Louridas inquired into the incident, and Johnson repeated the story. Louridas replied that Claimant would be fired for insubordination. Johnson explained that Claimant's acts of insubordination were (1) yelling at her and (2) instructing the patient to return to the office after Dr. Matarazzo had made the medical decision that the patient should leave. Johnson stated she was in charge of the office at the time Claimant yelled at her. However, Johnson agreed that Claimant complied with the request to sit down and did not use threatening or vulgar language. She also agreed that Claimant's behavior did not harm the office in any way and that none of the patients complained about Claimant's outburst.
The Referee questioned Johnson. Because Johnson had stated it was insubordinate for Claimant to countermand Dr. Matarazzo's instruction to G.V. to leave, the Referee asked whether Claimant knew of Dr. Matarazzo's instruction. Johnson acknowledged that Claimant had not been so informed. Johnson explained that G.V. had been noncompliant with treatment and had a history of losing prescriptions and trying to get prescription refills before the due date. On the day in question, Claimant had lost an Oxycontin prescription.
Louridas, the Office Manager, also testified. However, her testimony involved a discussion she had with Dr. Matarazzo, which was determined to constitute impermissible hearsay.
Claimant then testified. She stated that she was aware of Employer's policy against insubordination and that it could lead to termination. However, she denied being insubordinate. She stated that she asked G.V. to return to the office only because G.V. was slurring her words and was incoherent.
She explained that it was her understanding that sometime prior to the March 18, 2010, incident, G.V. had been informed that she would be seen only for emergency visits to the end of March 2010, after which she would no longer be a patient. On March 18, 2010, G.V. arrived for an emergency appointment, seeking a prescription from Dr. Matarazzo. To Claimant, G.V. appeared intoxicated. She was lying on "the patient chairs, she couldn't speak, she was mumbling." R.R. 27. After Dr. Matarazzo gave G.V. a prescription for 300 Oxycontin tablets, G.V. left the office. However, she returned shortly thereafter, claiming to have lost the prescription. Dr. Matarazzo refused to provide her with another prescription, and G.V. again left the office for a second time. Ten minutes later, Claimant answered Employer's telephone to find G.V. on the line, mumbling and incoherent. Because Claimant believed G.V. was outside in the parking lot, she told her to return to the office. Claimant explained that she did not want G.V. to drive because she did not appear to be in a condition to do so. G.V. returned to the office.
Claimant told Johnson that she wanted to discuss G.V.'s condition with Dr. Matarazzo because she did not believe G.V. should drive. When Johnson replied that Dr. Matarazzo could not be interrupted, Claimant did not attempt to interrupt the doctor. However, Claimant replied to Johnson that she "was not okay with how this was being handled" and "I'm not okay with her driving home in this, you know, condition." R.R. 30. Johnson told her to sit down and that both Johnson and the doctor would deal with the problem. Claimant said that she was in agreement with that solution and then left the office, at her scheduled leave time.
Two hours later, Johnson contacted Claimant by telephone. The two discussed the difficulties with G.V. Claimant stated that they ended the conversation congenially. It was not until she returned to work on March 21, 2010, that she learned she was being fired for insubordination.
The Referee found, as fact, that Claimant made the following statement in a loud voice: "[d]oes [everyone] hear this, I am against this" in front of staff and patients. Referee Decision, Finding of Fact 14. The Referee concluded that the content of that statement was not insubordinate. However, he found that making the statement in a loud voice in the presence of patients disregarded the standards of behavior that Employer had a right to expect. The Board affirmed the Referee's determination without further analysis or discussion.
Claimant now appeals to this Court. Claimant notes that she was fired for insubordination, but the Referee found that she had not been insubordinate. She asserts that it was error for the Referee to assign another basis for willful misconduct not raised by Employer. Second, Claimant argues that voicing an opinion to a supervisor, even in a loud voice, does not constitute willful misconduct.
Our scope of review is limited to determining whether constitutional rights were violated, errors of law committed or if the necessary findings of fact were supported by substantial evidence. Ductmate Industries, Inc. v. Unemployment Compensation Board of Review, 949 A.2d 338, 341 n.2 (Pa. Cmwlth. 2008). However, "[w]hether an employee's action constitutes willful misconduct is a question of law subject to judicial review." Conemaugh Memorial Medical Center v. Unemployment Compensation Board of Review, 814 A.2d 1286, 1288 (Pa. Cmwlth. 2003).
We begin with a review of the law on willful misconduct. Although not defined in the Law, the courts have established that it 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). It is the employer's burden to establish that a claimant's conduct constituted willful misconduct. Id.
(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; and
(4) negligence indicating an intentional disregard of the employer's interest or of the employee's duties and obligations to the employer.
In Claimant's first allegation of error, Claimant asserts that the Board erred in finding her guilty of willful misconduct on the basis of a violation of the expected standards of behavior, when she was fired for violating a work rule against insubordination. The Referee did not find insubordination. Instead, the Referee found that criticizing Dr. Matarazzo in a loud voice in front of patients violated standards of behavior the employer has the right to expect. The Board affirmed on this basis.
To establish willful misconduct in the violation of a work rule, the employer must establish the existence of the rule, its reasonableness, and that the employee was aware of the rule. Bishop Carroll High School v. Unemployment Compensation Board of Review, 557 A.2d 1141, 1143 (Pa. Cmwlth. 1989). Once employer meets this burden, the burden shifts to the claimant to prove that the rule was unreasonable or that there was a good cause for violating it. Philadelphia Parking Authority v. Unemployment Compensation Board of Review, 1 A.3d 965, 968 (Pa. Cmwlth. 2010).
The Board counters that although Employer incorrectly characterized Claimant's behavior as insubordinate, Claimant knew that she was discharged for yelling in the office in front of staff and patients. It was not error for the Board to assign a different descriptor to Claimant's willful misconduct so long as she had notice of the factual issues.
Claimant's hearing notice stated that the issue was whether she was ineligible for benefits under Section 402(e) of the Law by reason of willful misconduct. C.R., Item No. 8. The Referee opened the hearing by noting that the question was whether Claimant was discharged for willful misconduct. The legal issue was not framed as whether Claimant violated a work rule. The central factual question was whether Claimant spoke critically of the office in a loud voice in front of patients, and the Referee found that she did.
In Corbacio v. Unemployment Compensation Board of Review, 466 A.2d 1117 (Pa. Cwmlth. 1983), we explained that as long as the claimant has notice, the referee could consider any legal question, not just Section 402(e) of the Law. This was permissible where "no additional facts were elicited, there was no change in the burden of proof, and there was clearly no prejudice to the claimant...." Id. at 1119.
Here, Claimant had notice that she was charged with willful misconduct. The facts that Employer thought showed insubordination did not, but they did show, according to the Referee, behavior that did not meet the standards Employer had a right to expect. The factual burden of proof remained unchanged, and the Board did not err by changing the descriptor of her conduct.
In her second allegation of error, Claimant asserts that the Board erred in concluding that it was willful misconduct to state in a loud voice, "[d]oes everyone hear this, I'm against this." R.R. 16. She cites to two cases in support of this claim: Luketic v. Unemployment Compensation Board of Review, 386 A.2d 1045 (Pa. Cmwlth. 1978), and Dincher v. Unemployment Compensation Board of Review, 502 A.2d 797 (Pa. Cmwlth. 1986).
In Luketic, the claimant's employer informed her that she was going to be laid off for the stated reason that funding from the Department of Public Welfare (DPW) had been reduced. The claimant made inquiries and learned that employer's funding levels would not be reduced. After DPW questioned the employer about whether the layoffs were financially necessary, the employer informed the claimant that she should return to work. Eleven days after returning to work, the claimant attended a staff meeting at which the director announced that funding problems would result in layoffs. The claimant responded that the employer was misleading employees and that she intended to check with DPW. The employer fired her for insubordination. The referee found the claimant guilty of willful misconduct, reasoning that accusing the employer of dishonesty was disruptive and reflected a negative attitude. The Board affirmed. This Court reversed, holding that a poor attitude alone does not equal willful misconduct. Further, the claimant's language was neither abusive nor vulgar and appeared justified in light of her experience. We refused to hold that
rais[ing] in a non-abusive fashion what under the circumstances was a legitimate question ... even coupled with a finding of a bad attitude, can reasonably be classified as willful misconduct under the [Law].Luketic, 386 A.2d at 1048.
In Dincher, the claimant received permission to change his work schedule to attend a wedding. When the time approached, the supervisor refused to change his schedule. This resulted in an argument, in front of at least one other co-worker, wherein the claimant openly challenged his supervisor's veracity. The referee concluded that the claimant's actions amounted to willful misconduct, and the Board affirmed. This Court reversed, explaining that the "mere challenge of the employer's veracity absent vulgar and offensive language was not willful misconduct...." Dincher, 502 A.2d at 799. We also held that the "mere talking back to a supervisor absent abusive language is not willful misconduct for purposes of the [Law]." Id. at 800.
For its part, the Board points to other precedent. It believes that Claimant's conduct was willful misconduct under Costa v. Unemployment Compensation Board of Review, 374 A.2d 1012 (Pa. Cmwlth. 1977), and Strong v. Unemployment Compensation Board of Review, 459 A.2d 57 (Pa. Cmwlth. 1983).
In Costa, the claimant, a mailroom attendant, called his employer a liar in front of an entire office. The referee determined that his conduct violated the standards of conduct that an employer has the right to expect, and the Board affirmed. This Court agreed, holding that "abrasive, vulgar, or offensive remark[s]" constituted willful misconduct. Costa, 374 A.2d at 1013. Calling a supervisor a liar constituted an abrasive remark.
In Strong, the claimant, a coal miner, was directed to complete a safety examination of the entire mine. Believing the examination to be unnecessary, he asserted that the author of the notice was a "greenhorn" and that his supervisors were "running scared." Strong, 459 A.2d at 58. He first made these comments in the presence of other employees and later repeated them to the mine superintendent. The claimant was dismissed for insubordination. The Board concluded that the claimant's conduct constituted willful misconduct. On appeal, the claimant argued that his conduct was de minimis and the result of provocation. Finding no evidence of provocation, we concluded that the claimant was annoyed over having to perform a work assignment and that debating the merits of an assignment, instead of just doing it, constituted willful misconduct.
The Board's cases are distinguishable. Claimant did not publicly proclaim her Employer to be a liar or lacking in morals, nor did she refuse to perform work. Her conduct also cannot be characterized as abusive, abrasive or vulgar. It consists of one announcement, "[d]oes everyone hear this, I am against this." R.R. 16. On this announcement, the Board based its conclusion of willful misconduct.
In holding that Claimant did not meet the standards of behavior Employer had the right to expect, the Referee focused on the fact that Claimant's statements were made in front of patients and staff. Claimant's statement in front of the patients did not place Employer in a bad light. All they overheard was Claimant's assertion that she was against "this," i.e., something unspecified. Nor did the outburst continue. Claimant made no further comments and immediately complied with her supervisor's directive to sit down. As did the claimant in Luketic, Claimant may have exhibited a "poor attitude" in public, but "attitude" is not misconduct. Claimant simply challenged her supervisor's refusal to interrupt the doctor. As in Dincher, her comments constituted "talking back," which does not equal willful misconduct.
Claimant argues that her statement was not overheard by patients because it was not made in the waiting room, but inside the office behind sliding glass doors. However, at the hearing, Johnson testified that Claimant "yelled in front of the front office and the patients." R.R. 15. Thus, the Referee was free to accept this testimony. Notably, Johnson also testified that the comment caused no harm to patients or to the office; no patients complained about the outburst or reacted in any way.
We conclude as a matter of law that Claimant's statement did not exhibit a clear disregard of the standards of behavior an employer has a right to expect of its employees. Accordingly, the order of the Board is reversed and benefits are awarded.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 24th day of June, 2011, it is hereby ORDERED that the order of the Unemployment Compensation Board of Review dated August 23, 2010, in the above-captioned matter is hereby REVERSED.
/s/_________
MARY HANNAH LEAVITT, Judge