Opinion
No. 249 C.D. 2012
11-01-2012
Maryann Murtha, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Maryann Murtha (Claimant) petitions for review of an adjudication of the Unemployment Compensation Board of Review (Board) denying her application for benefits. In doing so, the Board affirmed the Referee's determination that Claimant committed willful misconduct, rendering her ineligible for benefits under Section 402(e) of the Unemployment Compensation Law (Law). Claimant contends that the Board erred in determining she violated Employer's policy to be friendly, polite and professional on telephone conversations with customers. Claimant asserts that the Board should have permitted her to present evidence that the policy was enforced arbitrarily and should have credited her testimony. Discerning no merit to Claimant's contentions, we affirm.
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 full-time as a telephone customer service representative for Allied Barton (Employer) from January 2, 2009, through July 14, 2011, earning $12.35 per hour. Employer dismissed Claimant for speaking rudely and inappropriately to customers. Claimant applied for unemployment compensation benefits, and the UC Service Center granted them because it found that Employer had not documented willful misconduct. Employer appealed, and a hearing was scheduled by a Referee.
At the hearing, Wendy Schain, the Director of the Service Assurance Center, testified in support of Employer's claim of willful misconduct. She explained that Employer runs a national security service. Claimant's job was to help security officers "get clocked in" or "clocked out" at their place of work. Notes of Testimony at 5 (N.T. ___). She also handled calls for emergency assistance. All calls are recorded and reviewed periodically for quality assurance.
Schain explained that Claimant was fired for repeatedly being rude to callers, in violation of Employer's work rule to be friendly, polite, and professional during telephone conversations. Schain testified that the work rule was introduced in December 2010 and that employees received training on this new quality assurance policy. Further, the policy was discussed with employees repeatedly.
Prior to her termination, Claimant had received two written warnings about her failure to conform to the policy. After each, Claimant received counseling about her tone of voice, professionalism, overall politeness and proper call handling techniques. Claimant asked for, and received, copies of the written warnings.
The first incident involved a call that Claimant received on April 22, 2011, from a former employee about his paycheck. Claimant expressed exasperation that he did not note his status as a former employee at the outset of the call. She also raised her voice. Schain determined that "[Claimant] did not meet the required 'polite, friendly and professional' standard that is expected of all employees" in this call but, rather, was condescending and annoyed. Certified Record, UC Service Center Exhibit 6 (first written warning disciplinary/counseling statement) (C.R. ___).
The second incident occurred on June 24, 2011, when a security officer was attempting to clock-in for his shift. Claimant had incorrect information about his location. The caller reiterated several times that his supervisor could be contacted if there was a question but that he needed to be clocked-in. Claimant responded by yelling that she would clock him in and hung up on him. When the security officer complained, Schain reviewed the call and concluded that Claimant had been rude and hung up on the caller without justification. Claimant received a second written warning for this incident, which stated that Claimant "knows that the department baseline performance expectations require that she remain friendly, polite, and professional at all times." C.R., Employer Exhibit 1 ("Final Written Warning Disciplinary/Counseling Statement"). The warning advised Claimant to contact a supervisor for assistance when she had difficulty maintaining composure.
The third incident occurred on July 11, 2011, when Claimant received a call from a nurse reporting an emergency in the transplant center where the nurse worked. Claimant requested the caller's name and extension and asked about the nature of the emergency; the nurse replied that a patient was nonresponsive. Claimant asked if an ambulance was being requested and then stated "you didn't tell me you need an ambulance" and "an emergency could be ... anything." N.T. 18. When the nurse stated that she did not have time to argue, Claimant transferred the call to emergency dispatch.
The nurse complained to Schain, who then listened to the recording of the call. Schain determined that Claimant had failed to follow Employer's specific policy on emergency calls. First, when informed of an emergency, it was Claimant's duty to ask immediately about the nature of the emergency, not the caller's name and number. Second, when Claimant realized that an ambulance was needed, she should have immediately placed emergency personnel on the line. Instead, she wasted time by lecturing the caller. Schain determined that Claimant was rude throughout the call and that her actions were inappropriate.
Employer submitted audio recordings of the three telephone calls into evidence. The Referee listened to the calls, and their contents were transcribed into the record.
When Schain informed Claimant that she was being discharged, Claimant responded that she knew "which call it would be about." N.T. 9. Claimant offered no explanation for her conduct at the discharge meeting.
On cross-examination of Schain, Claimant tried to establish Schain's antipathy toward Claimant. She questioned Schain about her effort to change Claimant's work schedule to accommodate a newly hired employee and Schain's irritation when Claimant would not agree. Schain responded that the scheduling change had nothing to do with accommodating a new employee. In any case, whenever Claimant needed a schedule accommodation for medical appointments, Schain made the change. Claimant also questioned Schain about bathroom breaks, but the Referee sustained Employer's relevancy objection.
Claimant then testified. She explained that the problem in the first incident was caused by the telephone caller's thick accent. She conceded that she may have become frustrated in the second call incident, but she was just responding to the caller's own frustration. As to the third incident, she did not feel she was chastising the caller by asking whether an ambulance was needed. Further, while getting the emergency responder on the phone, she also tried to flag down her supervisor, Karen Talarico, who just threw her hands up in the air and did not help.
Claimant acknowledged that Talarico had spoken with her after both written warnings. She admitted being told she was too rude and too blunt with callers. She also admitted that she received copies of both warnings.
The Referee determined that Employer had a work rule requiring employees to be friendly, polite and professional to callers; that Claimant was aware of this rule; and that she violated it on three separate occasions. Claimant's two written warnings advised her of the rule and that failure to comply could result in discipline. However, she did not change her conduct. The Referee found that during all three telephone calls Claimant was rude, impolite and unprofessional. Further, the Referee did not credit Claimant's contention that the manager failed to assist her during the third phone call. Accordingly, the Referee found Claimant ineligible by reason of her willful misconduct.
Claimant appealed to the Board. The Board specifically discredited Claimant's testimony that she followed the "action plan" during the final incident, i.e., that she contact a supervisor if struggling to maintain composure. Additionally, the Board did not credit Claimant's claim that she was fired because Schain disliked her. In any case, Schain's supposed dislike of Claimant did not justify Claimant's violation of a work rule. The Board noted that Claimant did not present evidence that she was treated any differently than other employees.
In her petition for this Court's review, Claimant raises six issues. First, Claimant argues that Employer did not establish that she violated a known work rule set forth in the employee handbook. Second, she argues that her conduct did not violate a work rule in the handbook. Third, she argues that she did not commit willful misconduct but, rather, complied with Employer's directive to seek assistance of a supervisor. Fourth, Claimant argues that the Referee impermissibly precluded her from presenting evidence of Employer's inconsistent application of its rules. Fifth, she argues that the Board erred in finding her not credible. Sixth, she argues that Schain should not have been allowed to testify about Claimant's state of mind.
Our review is limited to determining whether constitutional rights were violated, errors of law committed or whether the findings of fact are supported by the evidence. Renda v. Unemployment Compensation Board of Review, 837 A.2d 685, 691 n.4 (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;
(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; [or]
(4) negligence indicating an intentional disregard of the employer's interest or of the employee's duties and obligations to the employer.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. Conemaugh Memorial Medical Center v. Unemployment Compensation Board of Review, 814 A.2d 1286, 1288 (Pa. Cmwlth. 2003). Where willful misconduct is based upon 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 she had good cause for violating the rule. Gillins v. Unemployment Compensation Board of Review, 534 Pa. 590, 601 n.3, 633 A.2d 1150, 1156 n.3 (1993).
In Claimant's first and second allegations of error, she asserts Employer never proved that she knowingly violated its rules. Claimant argues that she was fired on the basis of the employee handbook, which proscribes inappropriate, abusive, offensive or aggressive language. Claimant argues that the record does not show that she ever received a copy of the employee handbook; it also does not show that she used abusive language.
The Board counters that Claimant misconstrues Employer's evidence and the Referee's determination. Although the employee handbook was admitted into evidence, Claimant was not fired for violating any provision of the handbook. Rather, she was dismissed for violating the work rule that telephone service representatives remain friendly, polite and professional during calls. Employer established the existence of this rule and Claimant's awareness of it. Claimant had been counseled on the rule after receiving the two written warnings. The Referee found that Claimant was discharged for violating this work rule, and there were no findings made with respect to the employee handbook.
We agree with the Board. The employee handbook had no bearing on her dismissal. Claimant was fired for not being polite and professional, and she offered no evidence that her conduct was otherwise. This disposes of Claimant's first two issues.
In her third issue, Claimant argues that she did not commit willful misconduct in the third incident because she followed Employer's suggestion that she summon a supervisor when a difficult situation arose. However, the supervisor failed to help her.
Claimant's second written warning suggested that she should seek assistance from a supervisor when she found it difficult to maintain composure. However, in the third incident Claimant did not seek assistance until after she lost her composure. By that time, Claimant had already lectured the nurse and wasted valuable seconds, instead of immediately responding to the emergency. In any case, the Board discredited Claimant's testimony that she attempted to follow Employer's suggestion to seek assistance from a supervisor. "Matters of credibility and evidentiary weight are within the province of the Board...." BK Foods, Inc. v. Unemployment Compensation Board of Review, 547 A.2d 873, 875 (Pa. Cmwlth. 1988). In short, we reject Claimant's third assignment of error.
In her fourth issue, Claimant argues that she was precluded from presenting evidence of Employer's discriminatory enforcement of its rules. To that end, Claimant tried to recount incidents, such as Schain's handling of bathroom breaks, that Claimant believed showed that she was disliked and not treated in the same way as other employees. This evidence was excluded by the Referee because it had nothing to do with discrimination, i.e., whether other employees were retained in spite of three incidents of rudeness.
At the hearing, the Referee explained that it was not relevant whether or not Schain liked Claimant. The Referee went on to explain what was needed to show disparate treatment:
I need evidence that someone was not discipline[d] for the same thing that [Claimant] was disciplined for. That's what disparate treatment means. Someone else was rude to people and didn't get fired, and she was rude to people and got fired ....N.T. 34. The Referee invited Claimant to present evidence of disparate treatment, but she did not provide evidence that other employees were rude to callers and not disciplined. In short, she did not prove discrimination.
In her fifth issue, Claimant challenges the Board's rejection of her testimony that she was discharged because of Schain's personal animosity. She argues that the Referee inappropriately precluded her from presenting such evidence. The Board counters that the evidence presented established that Claimant was fired because she was rude to callers. Accordingly, even if she were disliked, it would not negate the fact that she was fired for repeatedly and willfully violating a work rule. We agree with the Board.
Employer established that Claimant violated a known work rule on three separate occasions. Whether or not her supervisor liked her is irrelevant. An employer may not enforce its rules in a selective manner, but Claimant presented no such evidence of selective enforcement of its policy. Claimant's argument is nothing more than a challenge to the credibility determinations of the Board, which are beyond an appellate court's authority to revisit. BK Foods, Inc., 547 A.2d at 875.
Claimant's final assignment of error is that the Referee improperly allowed Schain to speculate as to Claimant's state of mind. This so-called speculation was expressed in Schain's testimony where she stated that Claimant "failed to realize" in the third incident that the nurse on the call was asking for an ambulance. Claimant objected that it was improper for Schain to speculate about Claimant's realization, but the Referee overruled the objection. Claimant is simply challenging Schain's manner of expression. How or when Claimant understood the nature of the call was immaterial to Schain's real point, which was that Claimant did not properly respond to the emergency call.
Accordingly, the order of the Board is affirmed.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 1st day of November, 2012, the order of the Unemployment Compensation Board of Review, dated January 26, 2012, in the above-captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge