Opinion
No. 2173 CD 2011
06-14-2012
Heather McFadden, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Heather McFadden (Claimant), pro se, petitions for review of an order of the Unemployment Compensation Board of Review (UCBR), dated October 3, 2011, which reversed a referee's decision and determined Claimant to be ineligible for benefits under 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) of the Law provides that a claimant shall be ineligible for benefits for any week in which her unemployment is due to her discharge from work for willful misconduct connected with her work. 43 P.S. §802(e).
The UCBR found as follows. Claimant last worked as a full-time assistant manager for Burger King Fast Food Enterprises (Employer) at its Fairview restaurant (Fairview) on April 6, 2011. Fairview is a training restaurant with a monthly speed-of-service average of two minutes, fifteen seconds per customer. Employer's standard for speed of service is a monthly average of two minutes, thirty seconds per customer. On April 4, 2011, Fairview's supervisor received a report of unusual activity in the drive-thru lane and began an inquiry. The supervisor learned that Fairview workers were driving their vehicles past the take-out window in order to trigger sensors and to reduce the average speed-of-service time. Claimant admitted to Employer that, on occasion, she "had" crew members drive through the drive-thru so as to lower the speed-of-service time. (UCBR's Findings of Fact, Nos. 1, 3-6, 11.)
These speed-of-service averages relate to drive-thru service times. (See, e.g., N.T., 6/7/11, at 17.)
Fairview competes for speed-of-service times with other Employer restaurants. Employer has an incentive program for managers, allowing them to receive financial gains for fast drive-thru numbers. Employer has a policy against falsifying company records and considers lowering the speed-of-service number in this way to be a falsification of company records. Employer is unaware of a widespread acceptance of this practice and discharges employees who allow this practice to occur. Employer discharged Claimant due to this incident. (UCBR's Findings of Fact, Nos. 2, 7-10, 12.)
After Claimant's discharge, she applied for unemployment compensation benefits, which the local job center denied based on section 402(e). Claimant appealed from the job center's determination, and the referee reversed, concluding, inter alia, that "the preponderance of evidence supports the Claimant's testimony that the practice of using ghost cars to diminish average speed-of-service time was common practice at four of the Employer's restaurants. . . ." (Referee's Op. at 2.) The referee further reasoned: "There was no evidence or testimony indicating that the Claimant had ever received any prior warnings or disciplinary action in regards [sic] to the use of ghost cars. . . ." (Id.)
After the referee concluded that Claimant was eligible for benefits, Employer appealed. The UCBR reversed the referee's determination, noting that Claimant admitted to the conduct for which she was discharged and that Claimant's assertion that other employees also engaged in this behavior did not justify Claimant's actions in the absence of Employer's knowledge and approval. The UCBR specifically found credible Employer's evidence "that it did not allow such behavior and in fact discharged other employees due to acting in such a manner." (UCBR's Op. at 3.) Claimant's petition for review to this court followed.
On appeal, we first address Claimant's argument that the actions for which she was terminated did not rise to the level of willful misconduct. Willful misconduct has been defined as the wanton or willful disregard of an employer's interests, the deliberate violation of an employer's rules, the disregard of standards of behavior that an employer rightfully expects of an employee, or negligence that indicates the intentional disregard of an employer's interests or of an employee's duties and obligations to an employer. Hershey v. Unemployment Compensation Board of Review, 605 A.2d 447, 449 (Pa. Cmwlth. 1992). Whether an employee's conduct amounts to willful misconduct is a matter of law subject to our review. Walsh v. Unemployment Compensation Board of Review, 943 A.2d 363, 368 (Pa. Cmwlth. 2008). The burden of proving such misconduct is on the employer. Id.
Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law, and whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
Here, Claimant specifically challenges the UCBR's Findings of Fact, Numbers 9 and 10, that Employer regards Claimant's deliberate reduction of the speed-of-service time to be a falsification of company records, Employer is unaware of a widespread acceptance of this practice, and Employer discharges employees who engage in such conduct. Claimant points out that the practice of attempting to lower a restaurant's speed-of-service time by use of the drive-thru is not specifically prohibited by Employer's handbook. She further relies on her own testimony and the testimony of her witnesses to support her contention that this practice is widespread and even expected at Employer's restaurants, arguing the UCBR should have credited her evidence in this regard. Claimant's argument lacks merit.
While Claimant and two of her former colleagues testified in support of Claimant's case, Lois Koster, Employer's district manager, testified that Employer was shocked by Claimant's conduct in attempting to lower Fairview's drive-thru speed-of-service number. (N.T., 6/7/11, at 7.) Koster also testified, in response to Claimant's counsel's question, that it is not behavior that "occurs all the time," (id. at 8), but it is conduct that results in termination when it occurs, (id.). Koster explained that "one of the core values of our company is integrity." (Id. at 12.) She further stated:
While Claimant also argues that the UCBR improperly relied on evidence of another employee's termination for this same conduct to reach its conclusion that Employer treated, in a uniform manner, all employees who engaged in this conduct, Claimant did not raise this issue in her statement of questions involved and, thus, it is waived. See Pa. R.A.P. 2116.
I will say there is nothing in the handbook that states you cannot ask a crew member to go through drive[-thru] for the purpose of lowering speed of service. In addition to that there is nothing in the handbook that states if you have a cash drawer that's over $10 you can take that money and put it in your pocket and take it home. Having said that if someone does take the $10 and put it in their [sic] pocket it would be classified as stealing and therefore termination would result.(Id. at 13.)
The UCBR is the ultimate fact-finder, entitled to make its own determinations as to the credibility of witnesses and evidentiary weight. Walsh, 943 A.2d at 368. Here, the UCBR specifically credited Employer's evidence that the conduct for which Claimant was discharged is a terminable offense and that Employer does not tolerate such conduct. Claimant's arguments to the contrary therefore fail.
Moreover, "[i]t is not always necessary to show the violation of a company rule to establish willful misconduct." Maikits v. Unemployment Compensation Board of Review, 456 A.2d 1157, 1159 (Pa. Cmwlth. 1983). Rather, it is sufficient "that an employer prove that an employee disregarded standards of behavior which an employer can rightfully expect." Id. In her brief, Claimant acknowledges that her conduct "was done during slow periods to relieve the pressure felt by the employees to be perfect because of the ridiculous expectations held on them as a „training restaurant."" (Claimant's Br. at 9.) Claimant therefore admits to her willful disregard of Employer's expected standards. --------
Last, we address Claimant's assertion that Employer discriminated against her by appealing the referee's award of benefits in her favor but deciding not to appeal a referee's decision that was favorable to another employee, who was terminated by Employer for the same conduct. Claimant contends in this regard:
I think that, as the employer knew my husband had not found work since the employers closed the Edinboro Burger King branch and had knowledge of the pregnancy of our second child, that the employer considered me more of a liability/expense [than my former colleague] who was able to secure a new job faster.(Claimant's Br. at 17.)
We explained in Glenn v. Unemployment Compensation Board of Review, 928 A.2d 1169, 1173 (Pa. Cmwlth. 2007) (citation omitted), that "„the essence of disparate treatment is not only whether unlawful discrimination has occurred but also whether similarly situated people are treated differently, based upon improper criteria."" While we sympathize with Claimant's predicament, her mere suppositions as to why Employer appealed her case to the UCBR but apparently not her former colleague's case do not support Claimant's claims of disparate treatment. For example, Employer could simply have determined that its case against Claimant was stronger than its case against her former colleague or could have chosen not to appeal that matter for some other legitimate reason. Thus, Claimant's argument in this regard also fails.
Accordingly, we affirm.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 14th day of June, 2012, the Order of the Unemployment Compensation Board of Review, dated October 3, 2011, is hereby affirmed.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge