Opinion
No. 1976 C.D. 2014
07-07-2015
Penn Forest Township, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Penn Forest Township (Employer) petitions this Court for review of an order of the Unemployment Compensation Board of Review (Board) holding Carol-Lyn Matthews (Claimant) not ineligible to receive unemployment compensation benefits under Section 402(e) of the Unemployment Compensation Law (the Law). We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, § 402(e), as amended, 43 P.S. § 802(e). Section 402(e) provides that an employee 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 was employed by Employer as an administrative assistant from November 29, 2012 until May 21, 2014. (Record Item (R. Item) 26, Board Decision and Order, Finding of Fact (F.F.) ¶1; R. Item 14, Hearing Transcript (H.T.) at 33, Reproduced Record (R.R.) at 37a.) Employer suspended Claimant without pay on May 21, 2014, and discharged her on June 2, 2014, for insubordination based on a May 9, 2014 argument in which both she and a member of Employer's Board of Supervisors, Supervisor Lignore, yelled profanities at each other. (R. Item 26, Board Decision and Order, F.F. ¶¶5-12; R. Item 3, Referee Ex. 7, R.R. at 41a; R. Item 14, H.T. at 33, R.R. at 37a.)
Claimant filed for unemployment benefits and the Unemployment Compensation Service Center found Claimant ineligible due to willful misconduct. (R. Item 5, Service Center Notice of Determination.) Claimant appealed and the referee conducted a hearing at which Claimant, Supervisor Lignore and two other witnesses for Employer testified, and documents concerning Employer's policies and Claimant's discharge were introduced into evidence. Both Claimant and Employer were represented by counsel at this hearing.
The evidence at the referee hearing was undisputed that an incident occurred on May 9, 2014 in Employer's break room in which both Claimant and Supervisor Lignore used profanity. (R. Item 14, H.T. at 6-9, 12-14, 22-32, R.R. at 10a-13a, 16a-18a, 26a-36a.) The witness testimony conflicted, however, as to who initiated the profanity and loud arguing. Employer's witnesses testified that Claimant came into Employer's break room where Supervisor Lignore, another Supervisor and another employee were having a discussion, that Claimant was the first to curse and raise her voice, and that Supervisor Lignore then used similar profanity and argued loudly with her. (Id. at 6-9, 13, 17, 19, 22-27, R.R. at 10a-13a, 17a, 21a, 23a, 26a-31a.) Claimant testified that she came into the break room when she overheard Supervisor Lignore talking about her in a loud voice and asked him to discuss the matter privately, but that Supervisor Lignore raised his voice and began cursing at her, calling her "a f—king drill sergeant." (Id. at 28-30, R.R. at 32a-34a.) Claimant testified that she called Supervisor Lignore "a f—king liar" in response, after he yelled and cursed at her, and that she left the room and returned to her office when the other Supervisor asked her to leave. (Id. at 30-32, R.R. at 34a-36a.) Claimant further testified that Supervisor Lignore came to her office later that day with flowers and apologized. (Id. at 31, R.R. at 35a.) Supervisor Lignore admitted that he did bring Claimant flowers later that day for Mother's Day and that he apologized, saying to Claimant, "let's move on. We don't need this bull crap." (Id. at 26, R.R. at 30a.) The evidence was undisputed that Claimant had no prior history of receiving warnings or other disciplinary action for insubordination, disrespectful conduct or any violation of Employer's policies. (Id. at 17-18, 27, R.R. at 21a-22a, 31a.)
The referee reversed the Service Center's determination and granted Claimant benefits. The referee found Employer's witnesses concerning the May 9, 2014 incident credible and that Claimant initiated the profanity. (R. Item 15, Referee Decision and Order at 2 & F.F. ¶¶6-8.) The referee concluded that Claimant's conduct could be considered insubordination, but held that Employer's decision to suspend Claimant was too remote from the incident to support a finding that the suspension and discharge were for willful misconduct. (Id. at 2.) Employer appealed to the Board.
On October 7, 2014, the Board issued a Decision and Order affirming the referee's grant of benefits, but on a different ground than the referee's decision. The Board resolved the conflicts between Claimant and Employer's witnesses in favor of Claimant, found Claimant's testimony credible, and found that she did not initiate the profanities. (R. Item 26, Board Decision and Order at 2.) The Board found that Claimant left the argument and returned to her office when requested to do so, and that her use of profanity did not constitute insubordination because Supervisor Lignore had directed profanity at her and Employer had no specific policy on profanity. (Id. at 2 & F.F. ¶¶3, 7-10.) Employer timely filed a petition for review appealing the Board's order to this Court.
Our scope of review of the Board's decision is limited to determining whether errors of law were committed, constitutional rights or agency procedures were violated, and necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; Temple University v. Unemployment Compensation Board of Review, 772 A.2d 416, 418 n.1 (Pa. 2001). --------
In unemployment compensation cases, the burden of proving willful misconduct is on the employer. Caterpillar, Inc. v. Unemployment Compensation Board of Review, 703 A.2d 452, 456 (Pa. 1997); Brown v. Unemployment Compensation Board of Review, 49 A.3d 933, 937 (Pa. Cmwlth. 2012). To prove willful misconduct, the employer must show: (1) wanton or willful disregard of the employer's interests, (2) deliberate violation of the employer's rules, (3) disregard of standards of behavior that an employer can rightfully expect from an employee, or (4) negligence that indicates an intentional disregard for the employer's interests or the employee's duties or obligations. Temple University v. Unemployment Compensation Board of Review, 772 A.2d 416, 418 (Pa. 2001); Caterpillar, Inc., 703 A.2d at 456; Brown, 49 A.3d at 936-37. Whether a claimant's actions constitute willful misconduct is a question of law fully reviewable on appeal. Temple University, 772 A.2d at 418 n.1; Caterpillar, Inc., 703 A.2d at 456; Brown, 49 A.3d at 937.
Employer argues that Claimant's use of profanity constituted willful misconduct. Use of vulgar language directed at a superior can constitute willful misconduct where the profanity is not provoked by the superior's language or conduct toward the claimant. Allen v. Unemployment Compensation Board of Review, 638 A.2d 448, 451 (Pa. Cmwlth. 1994); Losch v. Unemployment Compensation Board of Review, 461 A.2d 344, 346 (Pa. Cmwlth. 1983); Fields v. Unemployment Compensation Board of Review, 300 A.2d 310, 311 (Pa. Cmwlth. 1973). The context in which the claimant used profanity must be examined, however, in determining whether the claimant's language constituted willful misconduct. Brown, 49 A.3d at 937; Bush v. Unemployment Compensation Board of Review, 409 A.2d 523, 524 (Pa. Cmwlth. 1980). Absent a workplace rule or policy specifically prohibiting such language, an employee's utterance of profanity in response to the superior's use of profanity or other comparably abusive language or conduct toward the employee does not constitute willful misconduct. Brown, 49 A.3d at 937; Kowal v. Unemployment Compensation Board of Review, 512 A.2d 812, 813-14 (Pa. Cmwlth. 1986); Horace W. Longacre, Inc. v. Unemployment Compensation Board of Review, 316 A.2d 110, 111-12 (Pa. Cmwlth. 1974). The fact that similar language was directed by a superior at the claimant supports a conclusion that claimant's offensive language does not rise to the level of willful misconduct. Brown, 49 A.3d at 938 (superior's use of similar language in speaking to claimant negated finding of willful misconduct because "[m]anagement should be held to a higher standard of conduct").
Here, the Board found that Claimant directed profanity and raised her voice at Supervisor Lignore only after he unleashed a tirade at her using similarly offensive and vulgar language and that she stopped and went back to her office when requested to do so. Employer argues that Claimant's profanity must be held to constitute willful misconduct, regardless of who first used the offensive language, because it was not de minimis. We do not agree. The fact that a claimant's use of profanity was de minimis is an alternative basis on which the claimant's language may be found not to constitute willful misconduct. Use of profanity to a superior does not constitute willful misconduct, absent a workplace policy specifically addressing such language, if it was provoked by comparable or worse language or conduct by the superior or if it was de minimis. Brown, 49 A.3d at 937; Allen, 638 A.2d at 451; Cundiff v. Unemployment Compensation Board of Review, 489 A.2d 948, 951 (Pa. Cmwlth. 1985). Employer had no policy specifically prohibiting profanity in the workplace. (R. Item 26, Board F.F. ¶3; R. Item 14, Employer Ex. 2.) Because, under the Board's findings of fact, Claimant's profanity was provoked by Supervisor Lignore, it did not constitute willful misconduct, however offensive her language was in the abstract.
Employer also argues that the Board erred in rejecting the referee's finding that Claimant initiated the profanity. This argument likewise fails. The Board, not the referee, is the ultimate fact finder, and it is free to make its own credibility determinations and findings of fact, even though it did not hear testimony in person and the referee viewed the evidence differently. Peak v. Unemployment Compensation Board of Review, 501 A.2d 1383, 1385-88 (Pa. 1985); Chapman v. Unemployment Compensation Board of Review, 20 A.3d 603, 607, 611-13 (Pa. Cmwlth. 2011); Allen, 638 A.2d at 450; Carter v. Unemployment Compensation Board of Review, 629 A.2d 212, 216 (Pa. Cmwlth. 1993).
The requirement in Treon v. Unemployment Compensation Board of Review, 453 A.2d 960 (Pa. 1982) that the Board state reasons for rejecting a referee's findings applies only where the Board fails to adopt a referee finding that is based on undisputed evidence. Peak, 501 A.2d at 1386-87; Chapman, 20 A.3d at 612; Johnson v. Unemployment Compensation Board of Review, 744 A.2d 817, 820 (Pa. Cmwlth. 2000). Where the evidence on an issue is conflicting and the rejection of the referee's findings is based on the Board's credibility determinations, the Board is not required to give any reasons for its disagreement with the referee. Peak, 501 A.2d at 1387; Chapman, 20 A.3d at 612; Johnson, 744 A.2d at 820; Carter, 629 A.2d at 216. Here, the evidence concerning who started the loud argument and first used profanity was in conflict and the Board expressly found Claimant's testimony credible. The Board therefore was not required to explain its disagreement with the referee's findings.
For the foregoing reasons, we conclude that the Board did not err in holding that Claimant did not commit willful misconduct. Accordingly, we affirm the order of the Board.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 7th day of July, 2015, the order of the Unemployment Compensation Board of Review in this matter is hereby AFFIRMED.
/s/_________
JAMES GARDNER COLINS, Senior Judge