Opinion
No. 1580 C.D. 2012
04-05-2013
Gregory William Moran, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Gregory William Moran (Claimant), pro se, petitions for review of the Order of the Unemployment Compensation Board of Review (Board), which affirmed the decision of an Unemployment Compensation Referee (Referee) finding Claimant ineligible for Unemployment Compensation (UC) benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law). The Board held that Claimant's actions in using profanity towards a fellow employee on the sales floor in close proximity to customers of Redner's Tiger Markets, Inc. (Employer), constituted willful misconduct in connection with Claimant's work, thereby disqualifying him from receiving UC benefits. Claimant argues on appeal that Employer did not present sufficient evidence to support the finding of willful misconduct. Because we conclude that Employer's credited evidence supports the Board's finding of willful misconduct, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e) (providing, in relevant part, that an employee is ineligible for UC benefits for any week the employee's unemployment is due to willful misconduct connected with the employee's work).
Claimant worked in Employer's deli from December 31, 2010 until March 16, 2012, when Employer discharged him. Claimant filed a claim for UC benefits, which the local Service Center (Service Center) denied. Claimant appealed that denial, and the matter was assigned to the Referee for a hearing. At the hearing, Employer presented the testimony of its local Store Director (Director), and Customer Service Store Trainer (Trainer). (Hr'g Tr. at 5-10, 16-18.) Claimant denied using any curse words or that he had a confrontation with Trainer, but acknowledged that he had a confrontation with a co-worker from the deli during which he did not raise his voice or use curse words. (Hr'g Tr. at 11-13.) Based on this evidence, the Referee made the following findings of fact:
1. The claimant worked for [Employer] from December 31, 2010 until March 16, 2012 as a deli member. His final rate of pay was $9.00 per hour.
2. The employer has a Policy which states that fighting, immoral conduct, threats, or intimidation may result in disciplinary action up to and including termination.
3. The employer has a Policy which states that threatening, intimidating, abusing or coercing or interfering with employees, management or customers may result in disciplinary action up to and including termination.
4. The employer informed the claimant of these [p]olicies.(Referee Decision, Findings of Fact (FOF) ¶¶ 1-11.) The Referee resolved the conflicts in the evidence in Employer's favor. (Referee Decision at 2.) Although the Referee concluded that Claimant's cursing on the sales floor did not fall within the prohibitions set forth in the Policy, the Referee held that Claimant's use of the "'f' word, more than once, in a loud voice, within close proximity of store customers represents behavior which is contrary to that which an employer has the right to expect of an employee." (Referee Decision at 2.) Hence, the Referee affirmed the Service Center's determination finding Claimant ineligible for UC benefits.
5. The incidents which led to discharge occurred on March 14, 2012.
6. On this day, the employer's customer service store trainer was called to the deli by a deli clerk.
7. When the customer service store trainer arrived at the deli, she began talking with the claimant near the lunch meat and deli case.
8. During this conversation, the claimant said to the customer service store trainer, "I don't care who the f**ck is in the store, they are no f***ing better than me."
9. The claimant said these words in a louder than normal voice.
10. There were three customers who were approximately four to five feet from the claimant and customer service store trainer when this incident occurred.
11. The employer discharged the claimant on March 16, 2012 due to using foul and abusive language on the sales floor.
Claimant appealed to the Board, which discredited Claimant's testimony that he did not use profanity on the sales floor and amended Finding of Fact 8 to read that Claimant told Trainer "I don't give a f*ck who's in this store, they're no f[*]cking better than me." (Board Order.) The Board agreed that Claimant's actions were below the standard of behavior Employer had the right to expect from him and, therefore, constituted willful misconduct rendering Claimant ineligible for UC benefits. (Board Order.) Accordingly, the Board adopted, as amended, the Referee's findings of fact and conclusions of law and affirmed the Referee's decision. Claimant now petitions this Court for review.
"The Court's review is limited to determining whether constitutional rights were violated, whether an error of law was committed, whether a practice or procedure of the Board was not followed or whether the findings of fact are supported by substantial evidence in the record." Western and Southern Life Insurance Co. v. Unemployment Compensation Board of Review, 913 A.2d 331, 334 n.2 (Pa. Cmwlth. 2006).
On appeal, Claimant argues that the Board erred in finding him ineligible for UC benefits because Employer did not present sufficient evidence to prove that he engaged in willful misconduct. Claimant asserts that his dispute was with his co-worker from the deli, not Trainer, and neither Director nor Trainer had any first-hand knowledge of what was said during that dispute. Claimant further contends that the Board relied on false testimony to support its findings of fact.
Section 402(e) of the Law provides, in pertinent 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). While the Law does not define "willful misconduct," our Court has defined it as:
(1) a wanton or willful disregard for an employer's interests; (2) a deliberate violation of an employer's rules; (3) a disregard for standards of behavior which an employer can rightfully expect of an employee; or (4) negligence indicating an intentional disregard of the employer's interest or an employee's duties or obligations.Philadelphia Parking Authority v. Unemployment Compensation Board of Review, 1 A.3d 965, 968 (Pa. Cmwlth. 2010). The employer bears the burden of proving that the claimant's actions rose to the level of willful misconduct. Docherty v. Unemployment Compensation Board of Review, 898 A.2d 1205, 1208 (Pa. Cmwlth. 2006). If the employer satisfies its burden, the burden shifts to the employee to show that the employee had good cause for the conduct. McKeesport Hospital v. Unemployment Compensation Board of Review, 625 A.2d 112, 114 (Pa. Cmwlth. 1993). "A claimant has good cause if his or her actions are justifiable and reasonable under the circumstances." Docherty, 898 A.2d at 1208-09. Whether an employee's actions constitute willful misconduct is a question of law subject to de novo review. Id. at 1208.
A claimant's use of profanity in front of an employer's customers can constitute willful misconduct. Leone v. Unemployment Compensation Board of Review, 885 A.2d 76, 81 (Pa. Cmwlth. 2005). Likewise, "[a]n employee's use of abusive, vulgar or offensive language evidences a disregard of standards that an employer can rightfully expect of its employees." Id. (citing Allen v. Unemployment Compensation Board of Review, 638 A.2d 448, 450-51 (Pa. Cmwlth. 1994)). Although Claimant appears to believe he was discharged due to his confrontation with his co-worker from the deli, Employer presented evidence that Claimant was discharged for using foul and abusive language on the sales floor in a separate incident with Trainer. (FOF ¶ 11.) Trainer credibly testified that, during her conversation with Claimant, Claimant used the word "f*ck" twice, in a loud voice, within close proximity to three of Employer's customers. (FOF ¶¶ 8-10; Hr'g Tr. at 8-10.) Director credibly testified that Claimant was fired for using this language. (FOF ¶ 11; Hr'g Tr. at 5.) Under Leone and Allen, we conclude that Claimant's use of profanity toward Trainer, and in front of Employer's customers, constitutes "a disregard of standards that an employer can rightfully expect of its employees" and is willful misconduct. Leone, 885 A.2d at 81.
Claimant is correct that neither of Employer's witnesses observed this confrontation and could not offer first-hand testimony concerning what was said by whom during that confrontation.
Claimant does not offer any justification for his use of profanity except to deny that he did so and argue that the findings of fact are based on false testimony. (Hr'g Tr. at 11; Claimant's Br. at 4-5.) However, the Board did not credit Claimant's denial, (Board Order), choosing instead to credit the testimony of Employer's witnesses, which supports the Board's findings of fact. The Board is the ultimate finder of fact in UC cases and questions regarding the weight of the evidence and witness credibility are solely within its province. First Federal Savings Bank v. Unemployment Compensation Board of Review, 957 A.2d 811, 815 (Pa. Cmwlth. 2008). That Claimant might believe a different version of the events took place does not create grounds for reversal if the Board's findings are supported by substantial evidence. Tapco, Inc. v. Unemployment Compensation Board of Review, 650 A.2d 1106, 1108-09 (Pa. Cmwlth. 1994). As noted, Trainer's credited testimony regarding the events of March 14, 2012 constitutes substantial evidence that supports the Board's findings of fact. Therefore, Claimant did not meet his burden of proof of establishing good cause for his actions and is ineligible for UC benefits under Section 402(e) of the Law.
Substantial evidence is defined as "such relevant evidence which a reasonable mind might accept as adequate to support a conclusion." Philadelphia Gas Works v. Unemployment Compensation Board of Review, 654 A.2d 153, 157 (Pa. Cmwlth. 1995).
Claimant also argues that he did not violate any work rules and, therefore, his alleged use of foul language did not support his discharge and the denial of UC benefits. However, as discussed above, Claimant's use of profanity constitutes willful misconduct independent of whether he violated any work rules. --------
Accordingly, the Board's Order is affirmed.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, April 5, 2013, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge