Opinion
No. 1272 C.D. 2014
06-17-2015
Timothy C. Metzger, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Timothy C. Metzger (Claimant) petitions this court for review of the order of the Unemployment Compensation Board of Review which denied Claimant benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law), due to willful misconduct connected with his work. After review, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e).
Claimant was employed by Weatherwood Assisted Living (Employer) as a full-time cook from May 30, 2000, until he was discharged on January 17, 2014. On January 15, 2014, Claimant was carrying a chef's knife in his hand, approached a dishwasher from behind with the knife pointed at the co-worker, and paused for a few seconds while standing behind her. Claimant's actions were reported to his supervisor, who questioned him later that same day. Claimant told the supervisor that he was just "goofing around." Claimant had previously received a written warning in March 2012, for unsafe actions involving a knife. Employer discharged Claimant on January 17, 2014, citing the policy violation and his previous written warning.
Hearing of March 21, 2014, Notes of Testimony at 25.
Claimant's application for benefits was granted by the Unemployment Compensation Service Center via a Notice of Determination that he was not ineligible for benefits under Section 402(e) of the Law. Employer appealed, and a hearing was held before the referee at which several witnesses testified on behalf of Employer and Claimant appeared and testified as well.
Employer's Human Resource Consultant Jessica Rousseau testified that Employer implemented a corrective action discharge policy which it made available to all employees through its infonet. The policy provides for a progressive disciplinary procedure for certain behaviors such as horseplay, and states that infractions of the policy will result in a verbal warning, a written warning, a final written warning, and then discharge. Ms. Rousseau testified that Claimant had received a final written warning for a similar situation which occurred in March 2012, and that Employer discharged Claimant for "horseplay" and "unsafe actions with the knife." Hearing of March 21, 2014, Notes of Testimony (N.T.) at 8. Claimant's supervisor, Daryl Farneth, testified and confirmed that Claimant had received a final written warning in March 2012 for an incident that she witnessed and that she warned him that future infractions could result in his termination. She further testified that as his immediate supervisor, she participated in the decision to terminate Claimant. Employer's Administrator, Margie Zelenak, testified that on January 15, 2014, she received a complaint from employee Sherry Schreiber about an incident she witnessed in the kitchen involving Claimant and a knife. Ms. Zelenak investigated the incident, speaking to and taking written statements from those employees who were in the kitchen that day, including Claimant. She testified that Claimant denied any wrongdoing, but demonstrated to her that he had merely been carrying the knife over to the dishwasher, holding the knife pointed towards the dishwasher and parallel to the ground. Ms. Zelenak testified that she told Claimant, based on the manner in which he demonstrated how he carried the knife, that he was not holding the knife properly. On cross-examination, she testified that Claimant responded that he was just "[g]oofing around, fooling around . . . ." Id. at 26. Employer's final witness, Ms. Schreiber, testified that she was bussing plates in the kitchen when she saw Claimant walk up behind the dishwasher while holding a knife pointed straight up and that he stood there, "behind her back for a few minutes with the knife up." Id. at 27. Ms. Schreiber testified that the incident frightened her, because Claimant was acting "like it was a joke," that "he could just stand there with a knife at her back." Id. Ms. Schreiber testified that the employee was unaware of Claimant's presence behind her and that she could have been injured if she had turned around.
Claimant testified that on the day of the incident, he was prepping food in the kitchen and walked over to the dishwasher carrying an eight-inch chef's knife to be washed which he merely placed on the counter beside her and walked away. Claimant explained that he could not walk up behind the employee at the dishwasher because of the narrow space, but that he had approached her more from the side. He denied holding the knife out or upwards towards the employee, and testified that he held it close to his chest and pointed downwards. Claimant denied engaging in horseplay with the knife at any time on that date, but admitted on cross-examination that he had received the final written warning for a similar incident in 2012, and that he had been warned that any future violations could lead to further disciplinary action, including discharge.
The referee reversed the UC Service Center's determination and denied Claimant benefits. The referee found that Employer had issued a final written warning to Claimant in March 2012 for a safety violation involving a knife; that Claimant was seen holding a knife behind the back of a co-worker in a menacing manner while laughing; that Employer's policy prohibits horseplay; that Claimant was or should have been aware of the policy; that Employer discharged Claimant for horseplay with a knife in violation of its policy; and that Claimant had received a prior final written warning for related behavior. Referee's Decision/Order, Findings of Fact Nos. 2-6.
Claimant appealed and the Board affirmed. The Board credited Employer's witnesses' testimony and found that Claimant violated Employer's policy prohibiting horseplay and that his actions fell below the standards that Employer had a right to expect of its employee by "endangering another employee." Board's Decision and Order, June 27, 2014, at 2. The Board, therefore, concluded that Claimant was ineligible for benefits due to his willful misconduct under Section 402(e) of the Law. This appeal followed.
On appeal, Claimant argues that the Board's findings are not supported by substantial evidence; that the Board erred as a matter of law in determining that his actions constituted willful misconduct; and that the Board erred in determining that evidence of Employer's bias was not relevant and therefore properly excluded.
Section 402(e) of the Law provides that an employee is ineligible for unemployment compensation benefits when his unemployment is due to his or her discharge from work for willful misconduct connected to his work. Though not defined in the Law, willful misconduct has been construed as a violation of work rules or a disregard of standards of behavior an employer has the right to expect of employees. ATM Corp. of Am. v. Unemployment Comp. Bd. of Review, 892 A.2d 859, 865 (Pa. Cmwlth. 2006). Where the employee is discharged for violating a work rule, the employer must prove the existence of the rule and that the employee violated the rule. York v. Unemployment Comp. Bd. of Review, 56 A.3d 26, 35 (Pa. Cmwlth. 2012), app. den., 64 A.3d 633 (Pa. 2013). Once the employer meets its burden, the burden then shifts to the employee to show either that the rule is unreasonable or that he or she had good cause for violating the rule. Cnty. of Luzerne v. Unemployment Comp. Bd. of Review, 611 A.2d 1335, 1338 (Pa. Cmwlth. 1992). It is well established that the Board is the ultimate fact-finder and is empowered to resolve all conflicts in the evidence, witness credibility, and weight to be accorded to the evidence. Ductmate Indus. v. Unemployment Comp. Bd. of Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008). Where the record contains substantial evidence to support the Board's findings, they are conclusive on appeal. Id.
Claimant first argues that the testimony of Employer's witnesses was contradictory, inconsistent, and thus inadequate to support the Board's findings. Claimant argues that three of the witnesses were not even present during the incident, and the alleged eyewitness, Sherry Schreiber, continually contradicted herself throughout her testimony. Specifically, Claimant asserts that Ms. Schreiber initially testified that he stood behind the employee with a knife for a "few minutes," while on cross-examination, she testified it was only for "five seconds." Claimant's Brief at 6-7. Furthermore, Claimant asserts that Ms. Schreiber testified she overheard him making a comment to the employee while he stood behind the employee with a knife, but she also testified that it was very hard to hear anything in the kitchen and that she was more than twice the distance away from Claimant as the employee. Finally, Claimant contends that none of Employer's witnesses was able to establish with any consistency the actual position of the knife as he held it while walking over to the dishwasher. Claimant argues that the witnesses' testimony was so inconsistent and contradictory that it is impossible to determine which part or parts of the testimony the Board deemed credible and competent. In short, Claimant contends that the testimony by Employer's witnesses is not substantial, competent evidence that a reasonable mind would accept as adequate to support the Board's findings. We disagree.
Based upon the evidence presented, the Board concluded that Employer provided substantial evidence of willful misconduct and thus met its burden. Employer, through the credible testimony of its witnesses, Ms. Rousseau and Ms. Farneth, established the existence of the work rule prohibiting horseplay and the corrective action discharge policy, and that Claimant had previously received a final written warning under this policy. Employer further demonstrated, through the credible testimony of Ms. Schreiber and Ms. Zelenak, that Claimant violated the rule by carrying a knife in an unsafe manner and standing behind an unsuspecting employee while holding the knife and smiling in a joking manner. Claimant admitted that he was just goofing around. Claimant also admitted that he was aware of the rule, had received a final written warning, and that he had been warned that future infractions could lead to his discharge. As for any inconsistencies in the witnesses' testimony, they were resolved by the Board in Employer's favor, as was its prerogative as factfinder. Accordingly, we discern no error and reject Claimant's arguments to the contrary.
Next, Claimant contends that even accepting the facts as found by the Board, they do not support the legal conclusion that his conduct constituted disqualifying willful misconduct. According to Claimant, the Board found that while he was working in the kitchen on the date of the incident, he paused for a few seconds behind a co-worker while holding a knife in his hand and smiled. Then, the Board found that when questioned by his supervisor about his actions, Claimant responded that he was only "goofing around." Board's Decision and Order, Finding of Fact No. 7. Claimant argues however, that "it is difficult to ascertain what part of [his actions he] was referring to when [he told his supervisor that] he was 'goofing around.'" Claimant's Brief at 9. Claimant argues, for example, that he could have been referring to the way he smiled that day or he could have been referring to the fact that he paused for a few seconds while standing behind the co-worker when he characterized his own actions as "goofing around." Id. Claimant further argues that none of Employer's witnesses explained how pausing for a few seconds while standing behind a co-worker and smiling could be considered "horseplay." Id. at 6. In any event, Claimant contends that Employer did not establish how his behavior violated the rule and that, therefore, the Board erred in determining that his conduct constituted willful misconduct under the Law. We disagree.
Although Claimant would have us focus on certain aspects of his actions which he contends were benign and basically harmless, his argument notably ignores the crucial detail in his behavior that Employer's witnesses testified to and the Board found, which renders his conduct willful misconduct. Specifically, he was holding an 8-inch chef's knife pointed upwards when he walked up behind his co-worker to pause within a few feet of her back. As the Board properly concluded, Claimant's actions in carrying the knife in an unsafe manner and pausing behind the back of another employee with the knife in close proximity while she was unaware of his presence, not only violated Employer's policy prohibiting horseplay, but his actions in endangering the employee fell below the standards of behavior Employer had a right to expect of Claimant. As such, Claimant's conduct constituted willful misconduct under the Law.
Finally, Claimant argues that the Board erred when it excluded evidence of Employer's bias against him and Employer's corrupt or retaliatory motive for discharging him from employment. Claimant asserts that he would have testified that Employer was looking for an excuse to fire him because two years before the incident at issue, he had missed time from work due to vertigo. Claimant further avers that he would have testified that Ms. Schreiber is biased against him, and that, contrary to her testimony, they do not get along. Arguing that evidence of bias and corrupt motive is always relevant to the issue of a witness's credibility, Claimant contends that the exclusion of such evidence was in error. We disagree.
The record reveals that Claimant's counsel attempted to impeach Ms. Schreiber to show she was biased against Claimant by asking her on cross-examination: "Q: 'Do you have any personal animosity against [Claimant]?' A: [by Ms. Schreiber] 'No.'" Hearing of March 21, 2014, N.T. at 32. Claimant, however, never proffered any testimony regarding his relationship with Ms. Schreiber; thus, there is no merit to his contention that he was precluded from offering evidence of bias by the referee.
At the hearing, Claimant attempted to testify that Employer fired him in retaliation for missing time from work when he had vertigo, which occurred two years before the incident in question. Employer's attorney objected to this testimony on the ground of relevance and the referee sustained the objection. The regulations provide that, "[w]ithin the discretion of the tribunal, the parties shall be permitted to present evidence and testimony which they believe is necessary to establish their rights." 34 Pa. Code § 101.21(b). However, if evidence is not relevant, the referee may exclude it and is given wide latitude in the admission of evidence. Creason v. Unemployment Comp. Bd. of Review, 554 A.2d 177, 179 (Pa. Cmwlth. 1989). Here, Claimant's allegation that Employer fired him because he missed time due to vertigo is so temporally remote from the incident that led to his discharge that we see no abuse of discretion in sustaining the objection.
An abuse of discretion occurs where the Board's decision demonstrates evidence of bad faith, fraud, capricious action or abuse of power. Georgia-Pacific Corp. v. Unemployment Comp. Bd. of Review, 630 A.2d 948, 951 (Pa. Cmwlth. 1993). --------
Accordingly, we affirm the order of the Board.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 17th day of June, 2015, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge