Opinion
No. 1262 C.D. 2011
03-01-2012
Geoffrey J. Smith, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Geoffrey J. Smith (Claimant) petitions for review from an order of the Unemployment Compensation Board of Review (Board) that denied his claim for benefits under Section 402(e) of the Unemployment Compensation Law (Law) (willful misconduct) and the Emergency Unemployment Compensation Act of 2008. Claimant contends the Board erred in determining his conduct rose to the level of willful misconduct. Upon review, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
Claimant worked for Ultimate Landscape and Contracting (Employer) as a truck driver for slightly less than a year. During the course of Claimant's employment, he negligently caused several incidents. On Claimant's final day of work, Claimant's behavior resulted in two separate episodes.
The first incident occurred in the morning when Claimant attempted to move one of Employer's trucks. As Claimant began driving the truck, it accelerated at a high rate of speed. Claimant drove the truck straight across a two-lane residential street, over an embankment, and down a hill into the neighboring property's front yard. When asked, Claimant was unable to offer a reason why he accelerated so quickly or drove into the neighboring property. Claimant was unsure whether the truck accelerated as a result of a mechanical problem, or whether he made the mistake. Referee's Hearing, Notes of Testimony (N.T.), 2/9/11, at 14-15.
During the second incident, which occurred at the end of the day, Claimant left mud on a public road. Claimant caused this problem after he backed into a mud hole on a work site and then pulled out onto the roadway with his tires coated in mud. Because of Claimant's carelessness, Employer had to return to the site in the evening to remove the mud from the road. After these two incidents, Employer terminated Claimant's employment. Thereafter, Claimant applied for unemployment benefits, which were initially granted. Employer appealed.
At a hearing before a referee, Claimant testified on his own behalf and Timothy Moniger, Jr. (Employer's Witness), an Operations Manager for Employer and Claimant's former supervisor, testified for Employer.
After the hearing, the referee made the following findings:
1. [C]laimant was last employed by [Employer] for somewhat less than one year ....Referee's Dec., 2/25/11, Finding of Fact (F.F.) Nos. 1-6.
2. Throughout the course of his employment, [C]laimant was involved in numerous incidents in which his negligent operation of [E]mployer's truck caused losses to [E]mployer.
3. On [C]laimant's last day of work, while moving [E]mployer's truck, [C]laimant drove at a high rate of speed from a residential driveway across a two lane road over an embankment and through a residential yard.
4. [C]laimant has no explanation for how the above event occurred.
5. Also on [C]laimant's last day of work, while he was dumping dirt, [C]laimant backed through a mud hole and pulled out on to the roadway, leaving mud on the road surface which [E]mployer had to clean off.
6. [C]laimant was discharged for unsatisfactory work performance.
Based on these findings, the referee determined Claimant was ineligible for benefits because his negligent behavior rose to the level of willful misconduct due to its regularity. Claimant appealed.
On appeal, the Board affirmed the referee's decision adopting and incorporating his findings and conclusions. Additionally, the Board clarified that in reaching its decision it relied on Myers v. Unemployment Compensation Board of Review, 533 Pa. 373, 625 A.2d 622 (1993) for its definition of willful misconduct, rather than Coulter v. Unemployment Compensation Board of Review, 332 A.2d 876 (Pa. Cmwlth. 1975), upon which the referee relied. 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. Oliver v. Unemployment Comp. Bd. of Review, 5 A.3d 432 (Pa. Cmwlth. 2010) (en banc).
In his petition for review, Claimant asks whether the Board erred in determining his actions displayed an intentional and substantial disregard of Employer's interests, and therefore, rose to the level of willful misconduct.
Section 402(e) of the Law provides, "[a]n employe shall be ineligible for compensation for any week ... [i]n which his unemployment is due to his discharge ... from work for willful misconduct connected with his work 43 P.S. §802(e). "Willful misconduct" is "behavior evidencing a wanton or willful disregard of the employer's interests; a deliberate violation of the employer's work rules; a disregard of standards of behavior the employer can rightfully expect from its employee; [or], negligence indicating an intentional disregard of the employer's interest or an employee's duties or obligations." Dep't of Corr. v. Unemployment Comp. Bd. of Review, 943 A.2d 1011, 1015 (Pa. Cmwlth. 2008) (emphasis added). Whether a claimant's conduct rises to the level of willful misconduct is a question of law fully reviewable on appeal. Caterpillar, Inc. v. Unemployment Comp. Bd. of Review, 550 Pa. 115, 703 A.2d 452 (1997).
In Myers, our Supreme Court rejected the willful misconduct standard previously applied by this Court in Coulter. See Finch v. Unemployment Comp. Bd. of Review, 692 A.2d 619 (Pa. Cmwlth. 1997). Specifically, our Supreme Court held that an employee's negligence only constitutes willful misconduct if "[i]t is of 'such a degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional and substantial disregard of the employer's interest or of the employee's duties and obligations to the employer.'" Myers, 533 Pa. at 378, 625 A.2d at 625 (quoting Coleman v. Unemployment Comp. Bd. of Review, 407 A.2d 130, 131-32 (Pa. Cmwlth. 1979)); Navickas v. Unemployment Comp. Bd. of Review, 567 Pa. 298, 787 A.2d 284 (2001) (negligent conduct must be egregious or repetitive for it to warrant a finding that it is willful misconduct).
In his decision, the referee inaccurately quoted Coulter v. Unemployment Board of Review, 332 A.2d 876 (Pa. Cmwlth. 1975) in determining whether Claimant's multiple negligent actions constituted willful misconduct. Regardless of whether the referee's inaccuracy was a mere scrivener's error, the language used by this Court in Coulter is no longer precedential on this issue. Therefore, the Board correctly evaluated Claimant's appeal as instructed in Myers v. Unemployment Compensation Board of Review, 533 Pa. 373, 625 A.2d 622 (1993).
Upon review, the Board's findings support the conclusion that Claimant's behavior was of such a degree and recurrence it exhibited culpability. See Myers. Specifically, Claimant indicated a substantial disregard for Employer's interests and his duties, when "[he] ... operate[d] [E]mployer's truck in a negligent fashion on a consistent and regular basis." See Referee's Dec., at 2. Additionally, Claimant does not argue he had good cause for his behavior. See Docherty v. Unemployment Comp. Bd. of Review, 898 A.2d 1205 (Pa. Cmwlth. 2006). Therefore, based on his repetitious behavior contrary to Employer interests and his duties and obligations as an employee, Claimant's actions constituted willful misconduct.
Additionally, the Board's findings are supported by substantial evidence. See Bruce v. Unemployment Comp. Bd. of Review, 2 A.3d 667 (Pa. Cmwlth. 2010). Before the referee, Employer's Witness testified that Claimant's negligent driving constantly caused accidents and problems. F.F. No. 2. To that end, Employer's Witness expressed that Claimant was seemingly involved in an upwards of 4,000 incidents during his less than a year of employment. N.T. at 7. Moreover, Claimant was aware Employer was displeased with his inattentiveness as Employer regularly cautioned Claimant to be more careful. See id. Furthermore, it was undisputed that on Claimant's final day of work, he was involved in two truck driving related incidents as a result of his carelessness. N.T. at 3, 9.
In short, the Board's findings are supported by the record and establish Claimant's reoccurring misconduct, which persisted after warnings, exhibited a substantial disregard of his duties and Employer's interests. As such, it constituted willful misconduct. See Myers. Therefore, Claimant's argument lacks merit.
Accordingly, we affirm.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 1st day of March, 2012, the order of the Unemployment Compensation Board of Review is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
DISSENTING OPINION BY SENIOR JUDGE FRIEDMAN
I respectfully dissent from the majority's decision to affirm the order of the Unemployment Compensation Board of Review (UCBR) denying Geoffrey J. Smith's (Claimant) claim for benefits under Section 402(e) of the Unemployment Compensation Law (Law). I do not agree that Claimant's behavior constituted willful misconduct as contemplated by Section 402(e) of the Law.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
Willful misconduct requires a certain state of mind. See Myers v. Unemployment Compensation Board of Review, 533 Pa. 373, 378, 625 A.2d 622, 625 (1993). In Myers, our Supreme Court explained:
[A]n employee's negligence constitutes willful misconduct only if: . . . it is of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show[s] an intentional and substantial disregard of the employer's interest or of the employee's duties and obligations to the employer. Therefore, it follows that an employer cannot demonstrate willful misconduct by merely showing that an employee committed a negligent act, but instead must present evidence indicating that the conduct was of an intentional and deliberate nature.Id. (emphasis added) (citations and internal quotations omitted).
In this case, the findings do not support the conclusion that Claimant's behavior was of such a degree or recurrence to exhibit culpability or to show an intentional and substantial disregard of Employer's interests. Rather, the findings reflect that Claimant's behavior was merely negligent, i.e., it did not rise to the level of willful misconduct.
It is undisputed that Claimant's wrongful behavior was not intentional. (N.T., 2/9/11, at 11-12, 14.) With regard to the first incident, Claimant was unsure what caused the truck to accelerate. Claimant testified that the truck was taken to the garage for service the day before the incident to address problems with the starter. (Id. at 15.) The mechanic told Claimant that the truck "may start, it may slip again and it may accelerate." (Id.) Claimant was not sure whether a mechanical problem or his own error caused the sudden acceleration, but nothing of record indicates Claimant actions were intentional or reckless. (Id. at 13, 15.) As for the second incident of backing the truck into the hole later that same day, Claimant testified he did not know that the hole was there. (Id. at 14.)
Employer's witness testified in detail about the two incidents that occurred on Claimant's last day of work but provided only scant testimony regarding Claimant's other negligent behavior, which included spilling gravel on roads, driving with his tailgate down, and not cleaning up or reporting his messes. (N.T., 2/9/11, at 7.) Regardless of the number of incidents, the types of problems Claimant's negligence caused, although related to his position as a truck driver, were substantially different in character and did not exhibit a consistency indicating Claimant substantially disregarded Employer's interests or his own duties. See Myers. Additionally, Claimant's actions were not contrary to any specific instruction from Employer, but only Employer's general request that Claimant "pay more attention." (Id. at 9, 15, 20-21.) And yet, despite Employer's claims that Claimant's negligence amounted to willful misconduct, Employer rehired Claimant in January 2011. (Id. at 15.)
Employer's Witness explained that Claimant is a "very nice man." (N.T., 2/9/11, at 21.)
Further, Employer has presented no evidence of "substantial financial loss." See Michael A.Tokarsky, Jr. Trucking, Inc. v. Unemployment Compensation Board of Review, 631 A.2d 686, 692 (Pa. Cmwlth. 1993) (providing "a series of accidents, attributable to negligence, . . . which produce substantial financial loss to the employer . . . will support the conclusion that an employe is guilty of willful misconduct"). Although proof of a substantial financial loss caused by a claimant's repetitive negligence is not determinative of whether his behavior constitutes willful misconduct, it does provide indicia of the action's egregiousness. See Navickas v. Unemployment Compensation Review Board, 567 Pa. 298, 309, 787 A.2d 284, 291 (2001) (negligent conduct must be egregious or repetitive for it to warrant a finding that it is willful misconduct); Tokarsky, 631 A.2d at 692 (recurrent negligent behavior alone is not enough to establish willful misconduct). Here, none of Claimant's incidents caused Employer substantial cost or damage. (N.T., 2/9/11, at 10.) Employer's witness testified that the two incidents on Claimant's last day of work only cost Employer resources that were limited to spreading top soil, reseeding the part of the yard into which Claimant drove, and cleaning up the mud Claimant left on the road. (Id. at 10.) Therefore, although the incidents caused Employer some amount of loss, Claimant's behavior did not cause substantial financial harm to Employer. Thus, Claimant's behavior was not egregious in character.
In short, the UCBR's findings do not establish that Claimant engaged in willful misconduct, but rather that he was a careless employee, and possibly ill-suited for his job. Claimant's conduct was not so egregious or repetitive as to warrant a finding that it was willful. See Navickas; Tokarsky. Claimant's negligent conduct, while burdensome to Employer, does not demonstrate a wrongful intent or a substantial disregard of his duties or Employer's interests. For these reasons, I do not believe that Claimant's actions rose to the level of willful misconduct warranting the denial of benefits.
There is a critical distinction between an employer's right to terminate employment and a state's right to deny unemployment compensation benefits. See Grace v. Unemployment Compensation Board of Review, 412 A.2d 1128, 1130 (Pa. Cmwlth. 1980). Although an employer may be justified in terminating the employment of an accident-prone employee, accidents that are the result of mere negligence do not amount to willful misconduct. See Navickas, 567 Pa. at 306, 787 A.2d at 289. --------
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge