Opinion
No. 702 C.D. 2013
01-23-2014
Yvette Phillips, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Yvette Phillips (Claimant) petitions pro se for review of the March 12, 2013 order of the Unemployment Compensation Board of Review (Board) affirming a referee's determination that Claimant is 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 an employee shall be ineligible for compensation for any week in which her unemployment is due to her discharge or temporary suspension from work for willful misconduct connected with her work.
Claimant was employed by First Transit (Employer) as a bus operator from July 27, 2011, until October 26, 2012. Under Employer's policy, the first instance of a red light violation will result in a final warning and mandatory re- training, and a second red light violation will result in termination. In addition, Employer's employees are required to obey Pennsylvania traffic laws and regulations. (Board's Findings of Fact Nos. 1-3, 5; Ex. E1, E2.)
Employer's vehicles are equipped with a "drive cam," which, when triggered, records approximately twenty seconds of video from the driver's perspective. The drive cam can be triggered by making sharp turns or hitting a bump. On September 4, 2012, the drive cam recorded Claimant making a right turn through a red light without stopping. On September 12, 2012, Claimant received a final warning and was advised that the next safety violation may result in the termination of her employment. Claimant also underwent four hours of re-training. (Board's Findings of Fact Nos. 4, 6-8; Ex. E3, E4, E5.) On October 26, 2012, Employer received a report from the drive cam supervisor that Claimant had violated Employer's policy by turning on a red light without making a proper stop. Claimant was suspended pending a hearing. On November 7, 2012, following a hearing, Claimant was discharged for violating Employer's red light policy. (Board's Findings of Fact Nos. 9-10, 13.)
The local service center denied Claimant's application for benefits under section 402(e) of the Law. Claimant appealed, and a referee held a hearing on January 8, 2013.
Howard Ende, Employer's general manager, testified that Claimant was discharged after Employer learned that she went through a red light without stopping on October 17, 2012. Ende stated that Claimant had previously violated Employer's red light policy, which provides that a second red light violation will result in dismissal. He also testified that Employer's policy was given to all employees. Ende said that when he discussed the reasons for her termination with Claimant, she indicated that she had not improperly gone through a red light in the first incident. Ende testified that he subsequently requested and reviewed the tape of the first violation and that it showed that Claimant went through a red light without stopping. (N.T. at 6-13.)
Claimant testified that the incident occurred on October 10th. We note that the exact date is not essential to our determination.
During her cross-examination of Ende, Claimant referenced a September 1, 2011 email from Employer's human resources manager, which set forth Employer's revised red light policy that was to be distributed to employees the next day. The email concluded as follows: "The above process may seem redundant, however, it has been stated that we are inconsistent in the administration of company policies and procedures. Hopefully, the above will change that perception." (Ex. E2.) Ende testified that to the best of his knowledge the policy was consistently and uniformly enforced. (N.T. at 15.)
The previous version of Employer's red light policy provided for termination after the first violation. (N.T. at 13.)
Claimant testified that the violations were unintentional and did not place anyone in danger or cause Employer any harm. She stated that, in the first incident, the camera was triggered when she hit a bump while making a right turn, which was not prohibited at that intersection. She also said that the incident occurred at 4:00 a.m. and there was no traffic. Claimant testified that the camera was triggered the second time by braking hard and making a hard right turn. She explained that when the traffic light changed, she "was at a point of no return," and she made the right turn in order to avoid an accident that might have occurred if she entered the intersection. Claimant said no traffic was approaching from her left and there were no cars ahead of her, but she did see a car to her right. (N.T. at 16-21.)
Claimant also testified that she was not aware of Employer's policy. However, Claimant conceded that she signed a document acknowledging the September 4, 2012 safety infraction and the final warning that a subsequent violation of the policy would result in further discipline, including immediate termination. (Ex. E3, E4.)
Subsequently, Claimant acknowledged that the tape of the September violation she reviewed with Ende showed that the light was already red when she came to the intersection. When asked why she did not come to a stop when she approached a solid red light, Claimant responded, "Well I slowed down and made the right turn. I didn't - - again at 4:00 in the morning I was going on to I-95 there was no traffic. I slowed down to make that right turn." (N.T. at 25.)
The referee found that Employer has a red light policy of which Claimant was or should have been aware. The referee also concluded that Employer presented sufficient evidence to establish that Claimant violated its policy on two separate occasions, noting that Employer's evidence was corroborated by Claimant's testimony. The referee did not credit Claimant's testimony that, during the second incident, she was unable to safely stop the vehicle once the light turned red and made a right turn to avoid crossing the intersection. In addition, the referee noted that Claimant failed to explain why she did not have control of the vehicle. The referee noted Claimant's reference to Ex. E2 (the September 2011 email quoted above) and specifically found that Claimant was notified of Employer's revised red light policy and the consequences of violating that policy on September 2, 2011. The referee concluded that Claimant was discharged for willful misconduct and was ineligible for benefits under section 402(e) of the Law.
Claimant appealed to the Board, asserting that: Employer failed to present a rule regarding making a full stop at a red light prior to turning; there has been inconsistency in the administration of company policies; she did not sign or receive a copy of the revised policy; she was in full control of her vehicle on both occasions; the infractions were minor; the misconduct was unintentional; and she performed her job to the best of her ability.
In relevant part, the Board found that Employer had a red light policy, which was distributed to all employees on September 2, 2011; Claimant was, or should have been, aware of the policy; and she admittedly violated the policy on two occasions. In addition, the Board noted that Claimant presented no evidence that the policy was inconsistently enforced. The Board also took official notice that Pennsylvania law requires all drivers to come to a complete stop at a red light prior to making a right turn. The Board stated that Claimant's assertion that she had to make a right turn to avoid an accident did not demonstrate good cause for failing to stop and check for oncoming traffic. The Board further observed that although Claimant's conduct did not result in an accident or the issuance of a citation, she nevertheless violated Employer's policy. Concluding that the violations of Employer's policy constituted willful misconduct, the Board affirmed the referee's denial of benefits under section 402(e) of the Law.
On appeal to this Court, Claimant argues that the Board erred in concluding that her actions rose to the level of willful misconduct. Claimant does not dispute that she twice violated Employer's red light policy. Instead, Claimant notes that there was no accident, no injury or discomfort to patrons, and no traffic citation. Claimant states that during the first violation she yielded appropriately and cleared the intersection before making the right turn. She also asserts that during the second violation, she made a reasonable decision to turn to avoid a collision. Relying on Eschbach v. Unemployment Compensation Board of Review, 855 A.2d 943 (Pa. Cmwlth. 2004), and Tongel v. Unemployment Compensation Board of Review, 501 A.2d 716 (Pa. Cmwlth. 1985), Claimant argues that her inadvertent violation of Employer's rule does not constitute willful misconduct.
Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law, and whether findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704.
Although the Law does not define the term "willful misconduct," our Supreme Court has defined it as: a wanton or willful disregard for an employer's interests; a deliberate violation of an employer's rules; disregard for standards of behavior that an employer can rightfully expect of an employee; or negligence indicating an intentional disregard of the employer's interest or the employee's duties or obligations. Caterpillar, Inc. v. Unemployment Compensation Board of Review, 550 Pa. 115, 123, 703 A.2d 452, 456 (1997). An employer bears the burden of proving willful misconduct and meets its initial burden when it demonstrates the claimant's violation of a reasonable work rule of which the claimant was, or should have been, aware. Moran v. Unemployment Compensation Board of Review, 973 A.2d 1024, 1029 (Pa. Cmwlth. 2009). A claimant may nevertheless be eligible for benefits if she establishes good cause for violating the employer's rule. Conemaugh Memorial Medical Center v. Unemployment Compensation Board of Review, 814 A.2d 1286, 1288 (Pa. Cmwlth. 2003). --------
In Eschbach, we held that a claimant who was discharged for failing to report off from work was not ineligible for benefits based on willful misconduct because the claimant reasonably believed that her absence was protected under the Family and Medical Leave Act, 29 U.S.C. §§2601-2654, and not subject to the employer's absenteeism policy. In Tongel, we held that a dispatcher who was discharged for violating the employer's policy restricting the admission of police officers to the control center to police officers who were on official business was not ineligible for benefits under section 402(e) because she was never informed of the employer's rule.
Although Claimant contends that her violations did not rise to the level of willful misconduct, Claimant does not argue that she reasonably believed she did not have to comply with Employer's red light policy or that she was not aware of that policy. We agree with the Board that Claimant's assertion that she had to make a right turn to avoid an accident did not demonstrate good cause for failing to stop and check for oncoming traffic before making the turn. Moreover, we have previously held that a conclusion that the claimant engaged in disqualifying willful misconduct "is especially warranted in such cases where, as here, the employee has been warned and/or reprimanded for prior similar conduct." Department of Transportation v. Unemployment Compensation Board of Review, 479 A.2d 57, 58 (Pa. Cmwlth. 1984).
Having carefully considered the record, we conclude that the Board's findings are supported by substantial evidence and that its decision is in accordance with the law. Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 23rd day of January, 2014, the March 12, 2013 order of the Unemployment Compensation Board of Review is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge