Opinion
No. 1235 C.D. 2014
01-06-2015
Marvin D. Pryor, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Marvin Pryor (Claimant) petitions, pro se, for review of an adjudication of the Unemployment Compensation Board of Review (Board) denying his application for unemployment compensation benefits. In doing so, the Board affirmed the Referee's determination that Claimant was ineligible for benefits under Section 402(e) of the Law, 43 P.S. §802(e), because he violated a work rule prohibiting threatening behavior. Finding no error by the Board, 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 was employed full-time at UPMC Presbyterian Shadyside (Employer) as a Transport Monitor. Claimant worked for Employer from May 5, 2001, to February 12, 2014, when he was discharged. The stated reason for Claimant's discharge was threatening a coworker in violation of Employer's progressive discipline policy. Claimant's application for unemployment compensation benefits was granted by the UC Service Center. Employer appealed, and a hearing was conducted by the Referee.
Monica Giovengo, Employer's Human Resources Consultant, testified that she collects statements from employees related to disciplinary matters and makes recommendations on employee discipline to management. Giovengo stated that Employer has a progressive discipline policy, which allows for skipping steps depending on the severity of the infraction. Giovengo confirmed that Claimant was discharged for violating Employer's policy prohibiting "threatening, abusing or doing harm to others." Certified Record, Item No. 9 (C.R.___), Employer's Exhibit 1, at 5. Giovengo confirmed that Claimant received a copy of the policy during his employment orientation.
Claimant signed a form during his orientation acknowledging that he read and understood Employer's progressive discipline policy.
Giovengo testified that she learned of a verbal altercation between Claimant and his coworker, Robert Haley, from Claimant's supervisor, Denise Touray. Giovengo obtained a statement from Claimant about the incident, which she offered into evidence. According to Claimant's statement, he got into an argument with Haley in the men's locker room after Haley called Claimant a snitch. The two continued arguing as they entered the employee lounge to clock out for the day. At that point Claimant said, "Well after we punch out we can take it outside, I know where you park." C.R. 9, Employer's Exhibit 3. Haley responded, "If you come on my grandmother['s] property, I'll slap you." Id. Giovengo construed Claimant's statement to Haley to be a threat.
Giovengo testified that Claimant had two prior disciplinary warnings, so the altercation with Haley resulted in his third and final warning. Additionally, threatening a coworker is "usually considered cause for discharge, even without prior corrective action." C.R. 9, Employer's Exhibit 1, at 4. Accordingly, Giovengo recommended that Claimant be discharged.
Employer presented the testimony of Carolina Clark, the Transportation and Linen Services Supervisor. Clark was the supervisor on duty at the time of the incident and witnessed the exchange between Claimant and Haley in the employee lounge. Clark stated that Claimant was screaming and acting very aggressively towards Haley. Clark heard Claimant say to Haley that he was going to "come ... to [Haley's] grandmother's house and get him there." Notes of Testimony, April 29, 2014, at 10. Haley responded that he would slap Claimant if that happened. Id.
Claimant testified on his own behalf. He acknowledged arguing with Haley but disagreed with Employer's witnesses about the intensity of the argument or that his words were threatening. Claimant believed that his coworkers resented him for his religious beliefs and because he often offered them advice on how to do their jobs. Claimant testified that Employer should have considered his good performance review from 2013 before terminating his employment. See Claimant's Exhibit 1. Finally, Claimant opined that he received disparate treatment from Haley, who was disciplined but not discharged.
The Referee found that Claimant admitted to arguing with Haley and inviting him to continue their disagreement outside of Employer's facility. The Referee reasoned that Claimant's statements suggested that the conflict could continue, even to the point of physical violence. Claimant was aware of Employer's policy prohibiting threatening behavior and that he was at the final stage of Employer's progressive discipline. The Referee concluded that Claimant's actions constituted disqualifying willful misconduct for which he did not establish good cause. The Referee further found that Employer enforced its policy fairly against both employees in this case because Haley was deemed the less aggressive party and had no prior disciplinary actions. For these reasons, the Referee held that Claimant was ineligible for benefits under Section 402(e) of the Law, 43 P.S. §802(e). On review, the Board adopted the Referee's findings of fact and conclusions of law and affirmed the Referee's order. Claimant now petitions for this Court's review.
On appeal, Claimant argues that the Board erred in concluding that his actions rose to the level of willful misconduct. Claimant asserts that Employer's witnesses incorrectly characterized his interaction with Haley as threatening behavior, and that the Board should have considered his positive performance evaluation for 2013.
Our scope of review is limited to determining whether constitutional rights were violated, an error of law was committed or whether necessary findings of fact are supported by substantial competent evidence. Seton Company v. Unemployment Compensation Board of Review, 663 A.2d 296, 298 n.2 (Pa. Cmwlth. 1995).
We begin with a review of the law on willful misconduct. An employee who engages in willful misconduct is ineligible for unemployment compensation benefits under Section 402(e) of the Law, 43 P.S. §402(e). The employer has the burden of proving the employee's willful misconduct. Pettyjohn v. Unemployment Compensation Board of Review, 863 A.2d 162, 164 (Pa. Cmwlth. 2004). Whether an employee's actions amount to willful misconduct is a question of law subject to review by this Court. Nolan v. Unemployment Compensation Board of Review, 425 A.2d 1203, 1205 (Pa. Cmwlth. 1981). Willful misconduct has been judicially defined as conduct that evidences:
(1) the wanton and willful disregard of the employer's interest,Id. (citation omitted). Where the determination of willful misconduct is based on a work rule violation, the employer bears the burden of proving the existence of the work rule, the reasonableness of the work rule, the claimant's knowledge of the work rule and its violation. Johns v. Unemployment Compensation Board of Review, 87 A.3d 1006, 1010 (Pa. Cmwlth.), petition for allowance of appeal denied, 97 A.3d 746 (Pa. 2014).
(2) the deliberate violation of rules,
(3) the disregard of standards of behavior which an employer can rightfully expect from his employee, or
(4) negligence which manifests culpability, wrongful intent, evil design or intentional and substantial disregard for the employer's interest or the employee's duties and obligations.
A threat of harm to a coworker constitutes willful misconduct. Id. A threat is defined as a "communication that conveys an intent to inflict harm or loss on another." Id. To determine whether a "true threat" has occurred in a non-criminal case, a reviewing court will consider the totality of the circumstances. Id. at 1010-11 (citing J.S. v. Bethlehem Area School District, 807 A.2d 847 (Pa. 2002)). Specifically, the court will consider "the statements, the context in which they were made, the reaction of listeners and others, as well as the nature of the comments." Id. at 1011.
In all unemployment compensation cases, the Board is the ultimate fact finder and has exclusive power to resolve conflicts in the evidence and to decide witness credibility and the weight to be accorded the evidence. Ductmate Industries, Inc. v. Unemployment Compensation Board of Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008). It is irrelevant whether the record contains evidence to support findings other than those made by the fact finder; the critical inquiry is whether there is substantial evidence to support the findings actually made. Id. If so, the Board's findings are conclusive and cannot be disturbed on appeal. Id. Substantial evidence is such relevant evidence as 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). On review, this Court must examine the evidence in the light most favorable to the prevailing party, and give that party the benefit of all inferences that can be logically and reasonably drawn from the testimony. Chapman v. Unemployment Compensation Board of Review, 20 A.3d 603, 607 (Pa. Cmwlth. 2011).
Claimant argues that the Board erred in concluding that he committed disqualifying willful misconduct because Employer's witnesses embellished the severity of the incident and had been plotting Claimant's termination. Claimant asserts that the Board ignored important evidence, i.e., Claimant's positive performance evaluation and Employer's disparate treatment of Claimant and Haley.
Here, the Board found, as fact, that "the claimant replied that he and [Haley] could punch out and continue the disagreement outside, the claimant stating that he knew where [Haley] parked his car." Referee's Decision at 2; Finding of Fact 12. The Board also found that Haley responded that "if the claimant came on his grandmother's property, [Haley] would slap him." Id., Finding of Fact 14. These findings were supported by Claimant's own written statement following the incident and the testimony of Employer's witnesses. Based on those findings, the Board reasoned that the common sense understanding of Claimant's comment was that he wanted to continue the conflict off of Employer's premises, possibly to the point of physical violence. Thus, there was substantial evidence to support the Board's holding that Claimant engaged in threatening behavior in violation of a known work rule.
Claimant has cited no evidence to support his contention that Employer's witnesses were plotting his discharge and embellished the severity of his dispute with Haley. --------
Claimant also argues that the Board should have considered his positive performance evaluation for 2013. As noted, the Board is the final arbiter of fact and determines the weight to be accorded the evidence. Here, the Board did consider the performance evaluation but assigned it no weight because the issue in the case was not whether Claimant was a good employee but, rather, whether he violated Employer's work rule against threatening behavior. As an appellate court we are not at liberty to reweigh the evidence and, in any event, see no reason to do so here.
Finally, Claimant asserts that he was treated unfairly compared to Haley, who was disciplined but not discharged. The mere fact that one employee is discharged for willful misconduct and another is not discharged for the same conduct does not establish disparate treatment. American Racing Equipment, Inc. v. Unemployment Compensation Board of Review, 601 A.2d 480, 483 (Pa. Cmwlth. 1991). Employer's evidence established that Claimant and Haley were not similarly situated. Claimant had two disciplinary warnings and was at the end of Employer's progressive discipline policy, whereas Haley had no prior disciplinary history. The Board also found that Claimant was the more aggressive party to the incident, which was supported by the testimony of Employer's witnesses.
For all the foregoing reasons, we affirm the Board's adjudication.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 6th day of January, 2015, the order of the Unemployment Compensation Board of Review dated July 7, 2014, in the above-captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge