Opinion
No. 50 C.D. 2014
09-11-2014
PPL Electric Utilities Corporation, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
PPL Electric Utilities Corporation (Employer) petitions for review of the December 12, 2013 order of the Unemployment Compensation Board of Review (Board), which held that Shawn Stout (Claimant) was not 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 a claimant is ineligible for benefits for any week in which his unemployment is due to his discharge or suspension from work for willful misconduct connected with his work. The Law does not define the term willful misconduct, but our courts have defined it as including: wanton or willful disregard for an employer's interests; deliberate violation of an employer's rules; disregard for standards of behavior which an employer can rightfully expect of an employee; or negligence indicating an intentional disregard of the employer's interest or an employee's duties or obligations. Navickas v. Unemployment Compensation Board of Review, 787 A.2d 284, 288 (Pa. 2001).
Claimant worked for Employer from February 16, 2010, to May 25, 2013. On May 3, 2013, Claimant was told by his foreman, Keith White (White), that he was scheduled to take a random drug test. Claimant had left his driver's license in his truck, but he was able to take the drug test using his employee badge as identification. Claimant was asked to take a second drug test on May 10, 2013. He did not fail either test. (Board's Findings of Fact, Nos. 1-6.)
Claimant was employed as a "helper." (Board's Finding of Fact No. 1.) The parties offered no evidence regarding his particular job duties.
On May 17, 2013, Employer provided Claimant with a last chance agreement. (Reproduced Record (R.R.) at 146a-48a.) The agreement stated that Claimant had a history of violating company policies, that Claimant had lied about having an appointment, and that he attempted to impede a drug test on May 3, 2013. Claimant refused to sign the last chance agreement on the advice of his union representative, and Employer discharged Claimant for refusing to sign it. (Board's Findings of Fact, Nos. 7-9.)
The local job center granted Claimant's application for benefits. Employer appealed, and a referee held a hearing on September 10, 2013, at which Claimant, with counsel, and White testified.
White testified that Employer gave Claimant the option of signing a last chance agreement as an alternative to discharge. He noted that Claimant had been on Employer's "Responsible Behavior Program" since February 28, 2012, which was to expire in August of 2012, and that Claimant was disciplined by Employer in October 2012 and February 2013. White stated that, although the last chance agreement referenced Claimant's history of violating company policies, it was specifically given to Claimant because he attempted to impede a random drug test. White further testified that, on May 3, 2013, he informed Claimant that he was assigned to take a random drug before his shift began and escorted Claimant to the testing facility. White stated that Claimant attempted to impede the test, first by saying that his aunt had passed away and then by stating that he had left his license at his mother's house. White testified that Claimant was not able to take the test with the identification he had, but White also acknowledged that Claimant had an employee badge and that he took the test. (R.R. at 111a-16a.)
Claimant testified that he had been addicted to painkillers and tested positive for drugs in 2012. He stated that he voluntarily entered an inpatient treatment program which was followed by out-patient treatment. Claimant testified that on January 21, 2013, he received a call from the doctor in charge of his drug rehabilitation and was asked to come to the facility to sign papers authorizing his treatment. Claimant said he left a note informing his manager of the appointment. (R.R. at 126a-28a.) Claimant also submitted into evidence a copy of his signed release with the date and treatment facility counselor's signature. (Ex. C11, R.R. at 145a.)
Claimant further testified that on May 3, 2013, he left his driver's license in his truck, and he denied telling White that he left his license at his mother's house. (R.R. at 124a.) Claimant stated that the drug testing facility accepted his employee identification badge in lieu of his driver's license because the company handbook listed it as an acceptable form of identification for testing. (Id.) Claimant testified that after he returned to the worksite, he retrieved his license from his truck and presented it to White. Claimant stated that he passed the drug test, but he was suspended for failing to bring his license to the testing facility. (R.R. at 125a, 141a.)
Claimant testified that Employer called him into work on May 10, 2013, gave him a second drug test when he arrived, and then sent him home on suspension pending receipt of the test results. Claimant said that, on May 17, 2013, White read a last chance agreement to him, which stated that Claimant lied about having an appointment and attempted to impede his initial drug test, and White said he must sign it or be discharged. Claimant added that his union representative advised him not to sign the last chance agreement because he would lose his ability to pursue certain union rights, and, when Claimant refused to sign the agreement, Employer terminated his employment. (R.R. at 130a-32a, 141a-44a.)
The referee determined that Employer did not present sufficient, persuasive evidence to satisfy its burden to prove that Claimant was discharged for willful misconduct. Accordingly, the referee affirmed the job center's determination that Claimant was not ineligible for benefits under section 402(e) of the Law.
Employer appealed to the Board, asserting that the evidence of record reflected that Claimant was discharged for misconduct connected with his work. In its December 12, 2013 opinion, the Board issued the findings summarized above and affirmed the referee's decision. The Board noted that where an employer seeks to deny benefits based on an employee's failure to comply with the employer's directive, Pennsylvania courts examine the reasonableness of both the employer's directive and the employee's refusal. The Board found that, in this case, Employer failed to prove that Claimant lied about an appointment or that he attempted to impede his drug test. Specifically, the Board found that White's testimony was not supported by the record and was internally inconsistent, explaining as follows:
The employer failed to present competent evidence that the claimant lied about the appointment. [White] testified that the claimant attempted to impede the drug testing process by not having his driver's license, but also asserted that the claimant's employee badge was inadequate identification, but that the claimant also ultimately took the test. [White] also testified that the claimant did not pass the test, but failed to corroborate his testimony with the results. [White's] testimony was inconsistent, so the Board credits the claimant's consistent testimony that he left his driver's license in his truck, but his employee badge was sufficient identification to take the test, and that he did not fail either test.(Board's decision at 2.) Citing a lack of competent, credible evidence proving the reasonableness of the last chance agreement, the Board determined that Claimant's refusal to sign it was not unreasonable. Therefore, the Board concluded that Employer did not meet its burden of proving that Claimant was ineligible for benefits due to willful misconduct.
On appeal to this Court, Employer asserts that, contrary to the Board's findings, the record contains overwhelming evidence establishing that, after repeatedly violating company rules and policies, Claimant lied about an appointment and attempted to impede a drug test. Employer contends that, given Claimant's history and his repeated attempts to avoid a drug test on May 3, 2013, Employer's directive to sign the last chance agreement was reasonable and Claimant's refusal to sign it constitutes 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.
Essentially, Employer is asserting that the Board should have credited White's testimony. However, it is well settled that in unemployment compensation proceedings, the Board is the ultimate finder of fact, empowered to resolve conflicts in the evidence and determine the credibility of witnesses. Tapco, Inc. v. Unemployment Compensation Board of Review, 650 A.2d 1106, 1108 (Pa. Cmwlth. 1994). In making such determinations, the Board is free to accept or reject the testimony of any witness, in whole or in part, and can discredit testimony even where it is not contradicted. Daniels v. Unemployment Compensation Board of Review, 755 A.2d 729, 731 (Pa. Cmwlth. 2009); McFadden v. Unemployment Compensation Board of Review, 806 A.2d 955, 958 (Pa. Cmwlth. 2002).
The burden of proving willful misconduct rests with the employer. Guthrie v. Unemployment Compensation Board of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999). When an employee is discharged for refusing to comply with an employer's directive, the employer has the burden to establish the reasonableness of the directive and that the claimant refused to comply. Blue v. Unemployment Compensation Board of Review, 616 A.2d 84, 85 (Pa. Cmwlth. 1992). An employee's refusal to comply with a reasonable verbal directive, even in the absence of a rule or policy violation, may constitute willful misconduct. Bailey v. Unemployment Compensation Board of Review, 457 A.2d 147, 149 (Pa. Cmwlth. 1993).
As the Board correctly observed, when an employee is discharged for refusing to follow his employer's directive, both the reasonableness of the employer's demand and the reasonableness of the employee's refusal must be considered to determine whether the employee's action constitutes willful misconduct. Dougherty v. Unemployment Compensation Board of Review, 686 A.2d 53, 54 (Pa. Cmwlth. 1996). Whether an employee's conduct constitutes willful misconduct is a question of law subject to our review. Department of Corrections v. Unemployment Compensation Board of Review, 943 A.2d 1011, 1015-16 (Pa. Cmwlth. 2008).
Here, although White testified that Claimant's lying about an appointment and his attempts to avoid a drug test prompted Employer to provide Claimant with a last chance agreement, (R.R. at 174a), the Board found White's testimony in this regard not credible and accepted Claimant's contrary version of events. After rejecting White's testimony, the Board concluded that, absent proof that the situations giving rise to the last chance agreement actually occurred, Employer's directive to sign the last chance agreement was unreasonable. Consequently, the Board properly concluded that Employer failed to establish that Claimant was discharged for willful misconduct. Dougherty.
We appreciate that Employer views the evidence differently; however, a different version of the facts is not grounds for reversal where, as here, substantial evidence supports the Board's findings. Ruiz v. Unemployment Compensation Board of Review, 887 A.2d 804, 808 (Pa. Cmwlth. 2005). It is not this Court's role to reweigh the evidence or decide the credibility of witnesses. Allen v. Unemployment Compensation Board of Review, 638 A.2d 448, 450 (Pa. Cmwlth. 1994). Indeed, our scope of review requires that we affirm the Board's decision unless the adjudication violates the constitutional rights of the appellant, is contrary to law or agency procedure, or a finding of fact necessary to the determination is not supported by substantial evidence. Miceli v. Unemployment Compensation Board of Review, 549 A.2d 113, 115 (Pa. 1988). --------
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 11th day of September, 2014, the order of the Unemployment Compensation Board of Review, dated December 12, 2013, is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge