Opinion
No. 439 C.D. 2012
11-16-2012
Charles Scarborough, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Charles Scarborough (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board) that denied his claim for unemployment compensation (UC) benefits under Section 402(e) of the Unemployment Compensation Law (Law) (relating to willful misconduct). Claimant contends the Board's decision is not supported by substantial evidence because the Board's findings of insubordination were based on uncorroborated hearsay evidence. In addition, Claimant contends the Board erred in determining his conduct warranted a denial of benefits due to willful misconduct where his actions were justifiable or reasonable under the circumstances. Upon review, 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 states an employee shall be ineligible for compensation for any week in which his unemployment is due to willful misconduct connected to his work.
I. Background
The Board found the following facts. Claimant worked for the Central Bucks School District (Employer) as a utility worker from April 2007 until his discharge in April 2011. Claimant's responsibilities included grounds work. In August 2010, Claimant began working at Employer's Central Bucks East High School.
Throughout his employment, Claimant's work performance remained poor. As a result of Claimant's poor work performance, Employer provided Claimant with daily written assignments beginning in September 2010.
Employer uses a progressive disciplinary system to enforce its various rules. The progressive system involves five steps, including a verbal warning, a written warning, a one-day suspension, and a three-day suspension before termination. Employer gave Claimant a verbal warning, a written warning, a one-day suspension and two three-day suspensions. Claimant's second three-day suspension occurred in September 2010.
In January 2011, Claimant filed a discrimination complaint against Employer with the Equal Employment Opportunity Commission (EEOC). Claimant believed his disciplinary actions were related to his hearing disability. Employer received the complaint in March 2011.
On Friday, April 8, 2011, Employer's athletic director, John Reading (Athletic Director), met with Claimant to discuss his work priorities for the following Monday. Athletic Director became aware of a possibility of rain over that weekend. He instructed Claimant to remove any standing water from the school's varsity and junior varsity baseball fields as his first priority on Monday morning.
On Monday, Claimant reported to work at 6:30 a.m. Athletic Director arrived at work at 8:30 a.m. At 9:10 a.m., Athletic Director observed Claimant driving toward Employer's outdoor track area. Athletic Director asked Claimant if he removed the water from the baseball fields. Claimant replied that he had not.
Athletic Director then directed Claimant to remove the water on the baseball fields. Claimant responded he was going on break and that he would report to the baseball fields after his break. In the meantime, Athletic Director began working on the fields. At some point after 10:00 a.m., Claimant reported to the baseball fields and helped Athletic Director remove the standing water.
Thereafter, Athletic Director reported the day's events to the school's assistant principal, Martin Hayes (Assistant Principal). On April 12, the next day, Claimant was summoned to a meeting. Claimant admitted he decided to work on the tennis courts before the baseball fields because it was a shorter job. He also admitted he mowed a small area of grass near the outdoor track before he spoke with Athletic Director. However, Claimant asserted no one told him that working on the baseball fields was his first priority that morning. Rather, Claimant believed it was more practical to work on the tennis courts before the baseball fields. Employer discharged Claimant for insubordination and, specifically, for failing to follow the written assignment for Monday, April 11.
Thereafter, Claimant applied for UC benefits. The local service center ruled Claimant eligible under Section 402(e) of the Law. In so doing, the service center found Employer did not provide sufficient information to establish Claimant's insubordination.
Employer appealed. After an evidentiary hearing, a referee issued a decision affirming the service center's determination granting benefits. The referee accepted as credible Claimant's testimony that he never received the written assignment sheet for April 11. Further, the referee rejected Employer's evidence that a secretary claimed she delivered the assignment sheet to Claimant, as uncorroborated hearsay. Finding Claimant did not receive the assignment sheet, the referee concluded Employer failed to prove Claimant's insubordination.
Employer then appealed to the Board. Ultimately, the Board issued a decision and order reversing the referee's decision and denying Claimant benefits under Section 402(e). In so doing, the Board reasoned (with emphasis added):
The Board resolves the conflicts in testimony in favor of [Employer] and finds [Employer's] testimony to be credible. If an employee is discharged from [sic] refusing or failing to follow a specific order by his employer, the employer has the burden of proving that the demand was reasonable and the claimant has the burden of proving a reasonable response. The directive given to [Claimant] was simply that his top work priority on April 11, 2011, was to remove the standing water from the baseball fields. Here, the Board finds
[Claimant] failed to offer a reasonable explanation for not following [Employer's] directive. Although [Claimant] testified that he was never told that working on the baseball fields was his first priority on April 11, 2011, the Board does not find [Claimant's] testimony credible, especially in light of [Athletic Director's] credible testimony. The Board therefore, does find [Claimant's] conduct does rise to [sic] level of disqualifying willful misconduct. Also, while the Board recognizes that [Claimant] suffers from hearing loss, [Claimant] never testified that he did not hear [Employer's] directive. Rather, [Claimant] merely testified that he was not told that working on the baseball fields was his first priority on April 11, 2011. Additionally, there is insufficient credible evidence in the record that [Employer] discharged [Claimant] because he filed a complaint with the [EEOC]. Accordingly, for the above reasons, benefits must be denied under Section 402(e) of the Law.Bd. Op., 1/10/12, at 4. Claimant petitions for review.
Our review is limited to determining whether the necessary findings of fact were supported by substantial evidence, whether errors of law were committed, or whether constitutional rights were violated. Dep't of Corr. v. Unemployment Comp. Bd. of Review, 943 A.2d 1011 (Pa. Cmwlth. 2008).
II. Issues
A. Substantial Evidence
Claimant contends the Board's essential findings of fact are not supported by substantial evidence; therefore, the Board's denial of benefits must be reversed. In particular, Claimant asserts Employer's evidence that it gave Claimant a written prioritized list of tasks to be performed consisted entirely of uncorroborated hearsay. Therefore, Claimant urges, Employer failed to submit any competent evidence supporting a conclusion that Claimant was insubordinate for failing to follow a directive. See Walker v. Unemployment Comp. Bd. of Review, 367 A.2d 366 (Pa. Cmwlth. 1976) (hearsay evidence, properly objected to, is not competent evidence to support the Board's findings; although hearsay evidence, admitted without objection, may support a finding of fact if corroborated by any competent evidence of record, a finding based solely on hearsay cannot stand).
The Board's findings are binding on this Court if we find there is substantial evidence in the record supporting them. Tapco, Inc. v. Unemployment Comp. Bd. of Review, 650 A.2d 1106 (Pa. Cmwlth. 1994). Substantial evidence is defined as evidence that a reasonable mind, without substituting its judgment for that of the fact finder, might accept as sufficient to support the conclusion reached. Id. In reviewing the record to determine whether substantial evidence exists, we must view the record in the light most favorable to the party which prevailed before the Board, giving that party the benefit of all reasonable and logical inferences that can be drawn from the evidence. Id. In addition, the Board is the ultimate finder of fact in unemployment cases. Id. Thus, matters of credibility and the weight to be given conflicting testimony fall within the Board's province. Id. Therefore, even if a party produced witnesses who gave a different version of the events, that is not grounds for reversal if substantial evidence supports the Board's findings.
Regarding the events of Claimant's last day of work, Employer's operations director, Scott Kennedy (Operations Director) testified he believed Claimant received an assignment sheet on Friday, the preceding work day. Notes of Testimony (N.T.), 6/29/11, at 17-18. However, he had no personal knowledge that Claimant received the assignment sheet. Id. at 18. Rather, Assistant Principal and Athletic Director told Operations Director that Claimant received the assignment sheet. Id.
Moreover, Assistant Principal testified his secretary told him she gave Claimant the assignment sheet. Id. at 28. However, Employer did not submit the assignment sheet into evidence. Id. In addition, Assistant Principal's secretary did not testify.
Therefore, Claimant asserts, the Board's finding that Employer discharged him for insubordination and, specifically, for failing to follow the assignment given him on Friday, April 8, 2011, was based solely on Employer's uncorroborated hearsay evidence. Claimant consequently argues the Board's finding of insubordination cannot stand. Walker.
We disagree. An employee's deliberate noncompliance with a reasonable work assignment may constitute willful misconduct unless the employee shows good cause for his actions. Waltz v. Unemployment Comp. Bd. of Review, 533 A.2d 199 (Pa. Cmwlth. 1987); see also Am. Racing Equip., Inc. v. Unemployment Comp. Bd. of Review, 601 A.2d 480 (Pa. Cmwlth. 1991) (a single refusal to perform a work assignment may be tantamount to willful misconduct if it is in open disregard of the employer's interests, unless good cause is shown). If an employee knows of a work rule and intentionally disregards it, such conduct is more akin to disobedience of a direct instruction than inadvertence or negligence. Heitczman v. Unemployment Comp. Bd. of Review, 638 A.2d 461 (Pa. Cmwlth. 1994).
Willful misconduct is defined by the courts as: 1) wanton and willful disregard of an employer's interests; 2) deliberate violation of rules; 3) disregard of the standards of behavior which an employer can rightfully expect from an employee; or 4) negligence showing an intentional disregard of the employer's interests or the employee's duties and obligations. Grieb v. Unemployment Comp. Bd. of Review, 573 Pa. 594, 827 A.2d 422 (2002).
Further, an employer's directive need not be written in order to support a determination that an employee's violation of the directive constitutes willful misconduct. Graham v. Unemployment Comp. Bd. of Review, 840 A.2d 1054 (Pa. Cmwlth. 2004). An employer may reasonably expect that its employees will follow its non-written directives. Id.
Regarding the instructions given Claimant on the Friday before his last day of work, the Board found:
11. On April 8, 2011, [Athletic Director] met with [Claimant] to discuss his work priorities for Monday, April 11, 2011.
12. Part of [Athletic Director's] position is to watch the weather forecast.
13. [Athletic Director] became aware there was a possibility of rain for the weekend.
14. [Claimant] was informed by [Athletic Director] that his first priority on April 11, 2011 was to remove the standing water from the baseball fields, and thereafter, remove the standing water and pine needles from the tennis courts.
* * * *
28. [Claimant] admitted that he decided to work on the tennis courts before working on the baseball fields because the tennis courts were a shorter job ....
29. [Claimant] alleges he was not told that working on the baseball fields was his first priority ....
30. [Claimant] believed it was more practical to work on the tennis courts before working on the baseball fields.
31. [Claimant] was discharged for being insubordinate, and specifically for failing to follow the assignment that was given him on April 8 ....Bd. Op., 1/10/12, Findings of Fact (F.F.) Nos. 11-14, 28-31.
These findings are supported by the record. Specifically, Athletic Director testified that on Friday, April 8, 2011, Claimant came to his office and they talked face to face. N.T. at 33. They went over the list, and Athletic Director made Claimant's priorities clear to him. Id. Specifically, Athletic Director testified, "I said first thing I need you to remove the standing water from the baseball fields then move to the - remove the standing water and pine needles from the tennis courts." Id. On cross-examination, Athletic Director confirmed this conversation. Id. at 37.
Claimant testified he never received a prioritized list of tasks, written or otherwise, for Monday, April 11. Id. at 43. However, the Board found this testimony not credible, "especially in light of [Athletic Director's] credible testimony." Bd. Op. at 4. Claimant further testified that on Monday, when he reported to work, the baseball fields were very wet and would not dry until later in the day. N.T. at 43. Claimant stated he did the tennis courts first "because they were shorter than the baseball fields, because they were wet, I knew it would take a lot longer." Id.
Given the circumstances here, we discern no error in the Board's determination that Claimant's noncompliance with Employer's directive to remove the standing water from the baseball fields as his first priority constituted a disregard of Employer's interests. Where an employee is discharged for refusing or failing to follow an employer's directive, both the reasonableness of the demand and the reasonableness of the employee's refusal must be reviewed. Dougherty v. Unemployment Comp. Bd. of Review, 686 A.2d 53 (Pa. Cmwlth. 1996). Here, Employer's directive was reasonable given the baseball games scheduled for Monday afternoon. As to the reasonableness of the refusal, the Board properly determined Claimant failed to offer a reasonable explanation for not following Employer's directive. To that end, the Board rejected as not credible Claimant's testimony that he never received a directive telling him to first remove the water from the ball fields before doing anything else.
Additionally, the Walker hearsay rule is inapplicable here. Regardless of whether Claimant received a written assignment sheet, the Board credited Athletic Director's testimony that he met with Claimant on the preceding Friday and made clear Claimant's priority of tasks for Monday April 11, 2011. Bd. Op. at 4. As noted, an employer's directives need not be written. Graham.
As a result of Claimant's failure to comply with Employer's directive, Athletic Director needed to work on the ball fields himself to get them ready for use that afternoon. Although Athletic Director and Claimant were able to prepare the ball fields on time, an employer need not show a specific detriment from an employee's infraction to establish willful misconduct. Rossi v. Unemployment Comp. Bd. of Review, 544 Pa. 261, 676 A.2d 194 (1996). Considering the totality of the circumstances here, we discern no error or abuse of discretion in the Board's determination that Claimant's intentional disregard of Employer's directive to first remove the standing water from the baseball fields constituted willful misconduct. Rossi; Dougherty.
B. Good Cause
Nevertheless, Claimant contends he established good cause for his disregard of Employer's directive in that all his actions were justifiable or reasonable under the circumstances. We disagree. None of the reasons Claimant advances establish good cause for his disregard of Employer's directive.
First, Claimant testified he suffers from a profound hearing loss and that his hearing aid was inadvertently destroyed in the wash in March 2011, prior to his April 8 meeting with Athletic Director. See N.T. at 42. However, Claimant never testified he could not hear Athletic Director's instructions on Friday, April 8, 2011. Bd. Op. at 4.
We note Claimant did not wear a hearing aid at the referee's hearing. See N.T. at 42. --------
Second, Claimant testified he never received a prioritized list of tasks, written or otherwise, for Monday, April 11. Id. at 43. However, as discussed above, the Board rejected this testimony as not credible. Bd. Op. at 4.
Third, Claimant observed that the baseball fields were very wet and would not dry until later in the day. Id. Therefore, Claimant did the tennis courts first. However, an employee's subjective beliefs alone do not constitute good cause for disregarding a directive. Dougherty. Moreover, this explanation makes no sense: if the baseball fields were very wet and would not dry until later in the day, the water on them should be removed first to allow for the longer drying time.
Finally, Claimant asserts Employer initially accused Claimant of failing to remove excessive trash following an event on the grounds on Saturday, April 9. N.T. at 44. Only after Claimant explained he did not work on Saturday did Employer's focus change to the alleged priority of tasks on Monday. Apparently, Claimant contends his failure to follow the directive as to the baseball fields was not Employer's true motivation for his termination.
Regardless of whether Employer initially accused Claimant of failing to remove excessive trash from the grounds, the Board found Employer discharged Claimant for being insubordinate and "specifically for failing to follow the assignment given him on April 8, 2011, for April 11, 2011." F.F. No. 31. As discussed above, this finding is supported by substantial evidence. Therefore, it is binding on appeal, regardless of whether Claimant provided a different version of the events. Tapco, Inc. v. Unemployment Comp. Bd. of Review, 650 A.2d 1106 (Pa. Cmwlth. 1994).
For the foregoing reasons, we affirm.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 16th day of November, 2012, the order of the Unemployment Compensation Board of Review is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge