Opinion
No. 1178 C.D. 2012
07-11-2013
Frank Roberto, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEADBETTER
Claimant Frank Roberto petitions for review of an order of the Unemployment Compensation Board of Review (Board) that affirmed the decision of a referee and denied him unemployment compensation benefits, concluding that his actions constituted willful misconduct 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).
Employer has intervened in this matter. The Board will not be filing a brief.
Claimant worked as a full-time salesperson for Employer Cumberland Valley Motors (CVM) from August 2006 to October 2011, at an annual salary of $35,000. Pursuant to Employer's General Guidelines for Conduct, set forth in its employee handbook, intolerable misconduct includes "[t]hreatening, intimidating, coercing, or interfering with any person on CVM premises at any time." March 1, 2012 Hearing, Employer's Exhibit 1 at 12; Reproduced Record (R.R.) at 74a. The handbook further provides that, "[f]ailure to abide by these guidelines may result in disciplinary action, up to and including discharge." Id. Claimant knew or should have known of this provision.
In October 2011, Claimant was involved in a verbal altercation with a customer within view of other customers. The incident began when Claimant greeted the customer and the customer advised Claimant that he did not wish to speak with him and was there to speak with another salesperson. Claimant asked the customer his name and the customer once again advised Claimant that he did not wish to speak with him. When Claimant persisted in speaking with the customer, their discussion became heated and they both made profane statements. A fellow employee who observed the exchange informed the sales manager, who spoke to both the customer and Claimant regarding the incident. The customer advised the sales manager that Claimant had threatened to "kick his ass." Finding of Fact No. 8. When questioned by the sales manager, Claimant denied making that statement. The customer called the police. When the police interviewed Claimant, he represented that the customer was the aggressor and that he had reacted to that aggression. Claimant, however, ultimately admitted to the police that he had called the customer an "asshole" and a "piece of shit." Finding of Fact No. 14. In addition, Claimant admitted to telling the customer that, "if I were younger I'd kick your ass." Id.
Initially inclined to defend Claimant, Employer's president changed her mind once the police informed her that he had admitted to making the statements. In addition, Claimant told the president that, when the sales manager initially questioned him, he had denied making the statements because he was scared. The customer agreed not to press charges as long as Employer handled the matter internally. Subsequently, the president terminated Claimant for lying when questioned by his supervisor, threatening a customer, using discourteous language and disrupting business. Findings of Fact Nos. 20 and 24. The Board determined that Employer's business was disrupted because, although the president had apologized to the customers who had witnessed the altercation, those customers told her that they would not return to do business. The customer involved in the incident also did not return.
The Lancaster UC Service Center determined that Claimant was ineligible for benefits. After a hearing at which Claimant and three witnesses for Employer testified, including the police officer called to the scene on the day of the incident, the referee affirmed. Claimant appealed to the Board, which adopted and incorporated the referee's findings and conclusions and affirmed. Claimant's timely petition for review to this Court followed.
Whether a claimant's actions constitute willful misconduct is a question of law over which we exercise plenary review. Yost v. Unemployment Comp. Bd. of Review, 42 A.3d 1158, 1162 (Pa. Cmwlth. 2012).
Section 402(e) of the Law provides, in pertinent part, 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 . . . ." The term "willful misconduct" has been defined to include: (1) the deliberate violation of work rules; and (2) the disregard of standards of behavior which an employer can rightfully expect of its employee. Brown v. Unemployment Comp. Bd. of Review, 49 A.3d 933, 936-37 (Pa. Cmwlth. 2012). The employer bears the initial burden of proving that the claimant engaged in willful misconduct. Id. at 937. If the willful misconduct charge is based upon a violation of a work rule, the employer must prove the existence of the rule, its reasonableness, and that the employee was aware of the rule. Id. Once the employer establishes a prima facie case of willful misconduct, the burden then shifts to the claimant to demonstrate that the rule was unreasonable or that he had good cause for his conduct. Id. The claimant has good cause if his conduct "is justifiable or reasonable under the circumstances." Frumento v. Unemployment Comp. Bd. of Review, 466 Pa. 81, 87, 351 A.2d 631, 634 (1976).
In the present case, it is undisputed that there is a work rule prohibiting "threatening, intimidating, coercing, or interfering" with any person on Employer's premises. The reasonableness of the rule is not at issue. With regard to violation of that rule, the Board found that, notwithstanding the customer's repeated statements that he did not want to speak with Claimant and wished to speak with another employee, Claimant persisted in speaking with the customer. March 1, 2012 Hearing, Notes of Testimony (N.T.) at 48-49; R.R. at 50-51a. In addition, the Board accepted the police officer's testimony that Claimant admitted to calling the customer an "asshole" and a "piece of shit" and telling him that he would "kick his ass" and teach him a lesson if he were younger. Id., N.T. at 44; R.R. at 46a. We are bound to examine the testimony in the light most favorable to Employer, who bore the burden of proof and in whose favor the Board found, giving it the benefit of all inferences that can logically and reasonably be drawn from the testimony. Spencer v. Unemployment Comp. Bd. of Review, 602 A.2d 484, 485 (Pa. Cmwlth. 1992). At the very least, Claimant's persistence constituted interfering with a person on Employer's car lot. At the most, his conduct was threatening, intimidating and/or coercing. Accordingly, we agree that Employer established that Claimant violated a known work rule.
Moreover, even though Employer only needed to establish violation of a work rule to prove disqualifying willful misconduct, the findings also support a determination that Claimant's conduct was contrary to the behavior standards which Employer as a car dealership had a right to expect of its salesperson. It is well established that "an employee's threat to inflict bodily injury upon a superior generally is willful misconduct since such conduct evinces at least a disregard of the behavior standards which an employer has a right to expect of an employee." Reed v. Unemployment Comp. Bd. of Review, 522 A.2d 121, 123 (Pa. Cmwlth. 1987). This tenet is all the more applicable when considering a salesperson's threat against a potential car buyer within view of other potential car buyers. Claimant's misrepresentation to his manager during the investigation of the altercation also was contrary to the behavior standards which Employer had a right to expect. Downey v. Unemployment Comp. Bd. of Review, 913 A.2d 351, 353 (Pa. Cmwlth. 2006). Having concluded that Employer established Claimant's willful misconduct via violation of a known work rule and behavior contrary to Employer's interests, we turn to determining whether Claimant established good cause for his conduct.
Contrary to Claimant's contention, there is support in the record for the Board's determination that he made a misrepresentation to the sales manager regarding the incident. See March 1, 2012 Hearing, N.T. at 12 and 33; R.R. at 14a and 35a. In addition, the Board specifically referenced the misrepresentation in Findings of Fact Nos. 9 and 16. --------
Claimant maintains that the customer's alleged provocation negated Claimant's "spur-of-the-moment" reaction consisting of profanity and an allegedly illusory threat of physical harm. In support of his position, Claimant cites cases holding that where threats or offensive remarks were justifiably provoked and of a de minimis nature, they did not constitute willful misconduct. See, e.g., Reed, 522 A.2d at 123; Blount v. Unemployment Comp. Bd. of Review, 466 A.2d 771, 773 (Pa. Cmwlth. 1983); First Family Fed. Sav. & Loan Ass'n v. Unemployment Comp. Bd. of Review, 449 A.2d 870, 872 (Pa. Cmwlth. 1982). Claimant's argument is without merit.
As an initial matter, we point out that nowhere in its decision did the Board credit Claimant's allegations of provocation. In fact, it found as follows: "Claimant testified [that] the customer initiated the exchange. However, the Claimant admitted during testimony that the customer was not receptive to him and informed him that he was there to speak to another sales person." Board's Decision at 3. The Board reasoned that "Claimant could have walked away but did not walk away." Id. Accordingly, the cases Claimant relies upon are distinguishable because his persistence in engaging the customer in conversation when the customer twice asserted that he did not wish to speak with Claimant and wished to speak with another salesperson rendered Claimant's conduct unreasonable and unjustified such that it did not constitute good cause. For the above reasons, therefore, we affirm.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 11th day of July 2013, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge