Opinion
No. 2049 C.D. 2014
05-14-2015
Ralph Rodriguez, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Ralph Rodriguez (Claimant) petitions for review of the Order of the Unemployment Compensation Board of Review (Board) that affirmed the Referee's decision that Claimant was ineligible for benefits under Section 402(e) of the Unemployment Compensation Law (Law).
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e).
The facts, as initially found by the Referee and confirmed by the Board, are as follows:
1. The claimant last worked for Service Master Commercial Services on June 18, 2014 as a janitor at a rate of $8.00/hour.
2. The claimant was discharged for insubordination and unacceptable or inappropriate conduct as outlined in the employer's handbook.
3. The claimant signed for and received the employer's handbook.
4. Insubordination and unacceptable or inappropriate conduct are listed in the handbook as infractions which subject the employee to immediate discharge.
5. After complaints by a building manager regarding the failure of the claimant to perform certain cleaning duties assigned, the claimant's supervisor met with the claimant to inquire why the work had not been completed the prior evening.
6. The claimant stated that it was not his responsibility and that his co-workers did not complete the job.
7. The claimant was told that the work was the job of all the assigned staff and that work left undone was also the responsibility of the claimant.
8. The claimant refused the work assignment and stated to [sic] his supervisor was a liar.
9. The claimant contended that he had been relieved of the cardboard disposal duty which was the task left unfinished at the end of the prior evening.
10. The supervisor, a newer employee to the supervisor in ranks, contacted the President and the work manager and neither supported the claimant's contention of relief from the cardboard disposal.
11. The work site threatened to ban the claimant from their [sic] location and the company President immediately discharged the claimant for insubordination and unacceptable conduct at the work site.
....
REASONING
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The claimant contacted the Referee's office and elected not to attend the appeals hearing. Thus, with no firsthand testimony or evidence to counter the testimony of the employer with good cause, it is the view of the referee
that the employer did meet the burden of demonstrating willful misconduct on the part of the claimant when he refused a direct assignment of work and in an insubordinate manner berated his supervisor. Thus Referee finds the claimant not eligible for benefits.Referee's Decision, September 3, 2014, Findings of Fact Nos. 1-11 and Reasoning at 1-2.
The Board affirmed and noted:
...[T]he claimant began employment on March 14, 2013, and that despite being warned that his job was on the line, the claimant refused the responsibility of emptying the cardboard and told the area manager that he would not do it.Board's Decision, October 31, 2014, at 1.
....
Additionally, the claimant asserts on appeal that he did not attend the hearing because of his job. Based on the record, the claimant notified the Referee's Office on the day of the hearing that he would not be attending because of his new job. The claimant did not request a continuance or to reschedule the hearing. Further, even if the claimant's communication to the Referee's Office was considered a continuance, it was untimely requested on the day of the hearing.
Claimant contends that the Board erred when it affirmed the Referee's denial of benefits.
This Court's review in an unemployment compensation case is limited to a determination of whether constitutional rights were violated, errors of law were committed, or findings of fact were not supported by substantial evidence. Lee Hospital v. Unemployment Compensation Board of Review, 637 A.2d 695 (Pa. Cmwlth. 1994).
In his Statement of Questions Involved, Claimant mistakenly referenced Section 402(b) of the Law, 43 P.S. § 802(b).
Whether a Claimant's conduct rises to the level of willful misconduct is a question of law subject to this Court's review. Lee Hospital v. Unemployment Compensation Board of Review, 589 A.2d 297 (Pa. Cmwlth. 1991). Willful misconduct is defined as conduct that represents a wanton and willful disregard of an employer's interest, deliberate violation of rules, disregard of standards of behavior which an employer can rightfully expect from the employee, or negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard for the employer's interest or employee's duties and obligations. Frick v. Unemployment Compensation Board of Review, 375 A.2d 879 (Pa. Cmwlth. 1977). The employer bears the burden of proving that it discharged an employee for willful misconduct. City of Beaver Falls v. Unemployment Compensation Board of Review, 441 A.2d 510 (Pa. Cmwlth. 1982). The employer bears the burden of proving the existence of the work rule and its violation. Once the employer establishes that, the burden shifts to the claimant to prove that the violation was for good cause. Park v. Unemployment Compensation Board of Review, 501 A.2d 1383 (Pa. 1985).
Here, Anita Weihbrecht (Ms. Weihbrecht), President of Service Master Commercial Services (Employer), discharged Claimant for insubordination and unacceptable conduct as described in Employer's handbook. Notes of Testimony (N.T.), August 29, 2014, at 5. Ms. Weihbrecht testified that Claimant signed the employee handbook acknowledgement. N.T. at 5.
Margaret O'Brien (Ms. O'Brien), Area Manager for Employer and Claimant's former supervisor, testified that on June 18, 2014, a client complained that cardboard was not thrown away the previous evening. N.T. at 7. Ms. O'Brien asked Claimant why he didn't empty the trash or the cardboard and he replied that it was not his job. N.T. at 7. Ms. O'Brien stated that Claimant was aware that it was his responsibility to empty the trash and the cardboard and that she told him "if you don't do this, your job is on the line." N.T. at 9. Ms. O'Brien testified that Claimant said "that's a lie, you're [sic] liar." N.T. at 9.
In unemployment compensation proceedings, the Board is the ultimate fact-finding body empowered to resolve conflicts in evidence, to determine the credibility of witnesses, and to determine the weight to be accorded evidence. Unemployment Compensation Board of Review v. Wright, 347 A.2d 328 (Pa. Cmwlth. 1975). Findings of fact are conclusive upon review provided that the record, taken as a whole, provides substantial evidence to support the findings. Taylor v. Unemployment Compensation Board of Review, 378 A.2d 829 (Pa. 1977).
The Board determined that Claimant's refusal to empty the trash and cardboard was intentional and deliberate in nature and rose to the level of willful misconduct. Employer presented credible evidence that Claimant knowingly violated Employer's policy against insubordination and unacceptable conduct at a work site. Claimant challenged the Board's finding that Claimant was responsible for disposing of the trash and cardboard and that he called his supervisor a liar. Ms. O'Brien's credible testimony supported these findings. Further, Claimant failed to provide good cause for his actions.
Claimant asserts that the Referee's decision was biased because Claimant was unable to attend the hearing and the Board based its decision on fabricated evidence. The record indicates that Claimant never requested a continuance and that the Board's findings were supported by substantial evidence. --------
Accordingly, the decision of the Board is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 14th day of May, 2015, the decision of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge