Opinion
No. 1347 C.D. 2014
02-25-2015
Sheldon Stephens, 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 COVEY
Sheldon Stephens (Claimant), pro se, petitions this Court for review of the Unemployment Compensation Board of Review's (UCBR) June 26, 2014 order affirming the Referee's decision finding Claimant ineligible for Unemployment Compensation (UC) benefits under Section 402(e) of the UC Law (Law), finding that Claimant was overpaid UC benefits and was subject to penalty weeks. Essentially, there are two issues before the Court: (1) whether the UCBR's factual findings are based upon substantial evidence; and (2) whether United American Security LTD, LLC (Employer) demonstrated that Claimant engaged in willful misconduct under Section 402(e) of the Law. After review, we affirm.
Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e) (relating to discharge for willful misconduct).
Claimant was employed as a security guard for Employer from January 1, 2013 until June 14, 2013, assigned to Employer's client, the Department of Public Welfare (Department). On December 22, 2013, Claimant filed a claim for UC benefits. Claimant signed for and received UC benefits for compensable weeks January 4, 2014 through February 1, 2014.
Claimant and Employer dispute the circumstances that led to the cessation of Claimant's employment with Employer. Claimant represented to the Erie UC Service Center (UC Service Center) that he worked for Employer until Employer's contract with the Department ended, and that his employment ended due to lack of work. Employer informed the UC Service Center that Claimant was discharged for insubordination arising from Claimant's failure to adhere to call-off procedures and for using profane language with his supervisor while attempting to call off work. On February 13, 2014, the UC Service Center determined that Claimant's conduct constituted willful misconduct, imposed a fault overpayment under Section 804(a) of the Law requiring Claimant to repay the $870.00 paid to Claimant and assessed penalty weeks under Section 801(b) of the Law. Claimant appealed.
43 P.S. § 874(a).
43 P.S. § 871(b).
On March 31, 2014, a Referee held a telephone hearing. At the hearing, Employer's Operations Manager Fred Guy (Guy) testified that Employer has a policy prohibiting insubordination, and that he personally delivered a copy of that policy to Claimant at the time of his hiring. Guy also testified that Employer has a call-off policy requiring notification eight hours prior to a shift.
Guy testified that approximately four hours before Claimant's 2:00 p.m. shift began on June 18, 2013, Claimant notified his supervisor that he would be unable to report for his shift due to a family emergency. Guy instructed the supervisor to find another guard to replace Claimant. Guy called Claimant, whereupon, Claimant informed Guy that he was on his way back from New York and was still a few hours away. Because there were still approximately four hours before his shift was to start, Guy believed Claimant could return in time for the 2:00 p.m. shift and told Claimant that he would not be excused. Claimant responded: "You need to watch who the f[---]k you are talking to" and "I don't need this f[-----]g job," and hung up on Guy. Original Record (O.R.) Item No. 2. Guy called Claimant back and left a voicemail informing Claimant that his employment was terminated. Evidence also demonstrated that Employer gave Claimant a final warning for insubordination arising from an incident with another supervisor in February 2013.
In contrast to Employer's evidence, Claimant testified that he was not discharged from employment, but instead understood that because Employer's contract with the Department had ended, he need not return to work. Claimant denied that the June 18, 2013 telephone conversation with Guy occurred and that he would have used profanity. Claimant also stated that since he was scheduled to work a 10:00 p.m. shift on June 18, 2013 rather than a 2:00 p.m. shift, he did not need to call off work, and the conversation described by Employer would not have taken place.
On April 4, 2013, the Referee deemed Employer's witness "to be the more credible and resolve[d] all conflicts in testimony, in pertinent part, in favor of [Employer]." O.R. Item No. 14, Referee Decision/Order at 2. Finding that the disputed telephone conversation occurred, the Referee determined that Claimant was ineligible for UC benefits under Section 402(e) of the Law, that pursuant to Section 804(a) of the Law, Claimant was liable to repay the UC benefits he received, and that in accordance with Section 801(b) of the Law, Claimant was subject to the imposition of seven penalty weeks. Claimant appealed to the UCBR. On June 26, 2014, the UCBR adopted and incorporated the Referee's order and added a finding of fact stating, "[t]he [C]laimant intentionally failed to inform the Department [of Labor and Industry] of his discharge." O.R. Item No. 16, UCBR Decision/Order at 1. Claimant appealed to this Court.
"This Court's review is limited to determining whether the findings of fact were supported by substantial evidence, whether constitutional rights were violated, or whether errors of law were committed." Stugart v. Unemployment Comp. Bd. of Review, 85 A.3d 606, 608 n.3 (Pa. Cmwlth. 2014).
Claimant points to inconsistencies in Employer's evidence and argues that substantial evidence does not support the UCBR's finding that he engaged in willful misconduct on June 18, 2013. Further, Claimant asserts that the February 2013 misconduct was too remote in time to be considered a reason to terminate Claimant's employment. However, in regard to Claimant's latter argument Employer's stated reason for terminating Claimant's employment was not related to the February 2013 incident.
Claimant does not address in his brief the UCBR's finding of fault overpayment under Section 804(a) of the Law, or the UCBR's award of penalty weeks under Section 801 of the Law. Accordingly, those issues are waived. See Staffmore, LLC v. Unemployment Comp. Bd. of Review, 92 A.3d 844 (Pa. Cmwlth. 2014).
Section 402(e) of the Law provides that a claimant shall be ineligible for UC benefits for any week where "his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work[.]" 43 P.S. § 802(e). "The employer bears the initial burden of proving a claimant engaged in willful misconduct. Whether a claimant's actions rise to the level of willful misconduct is a question of law fully reviewable on appeal." Ductmate Indus. v. Unemployment Comp. Bd. of Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008).
This Court has described "willful misconduct" as:
(1) a wanton or willful disregard for an employer's interests; (2) a deliberate violation of an employer's rules; (3) a disregard for standards of behavior which an employer can rightfully expect of an employee; or (4) negligence indicating an intentional disregard of the employer's interest or an employee's duties or obligations. Where the
claimant is discharged for a work rule violation, the employer has the burden to show that the claimant was aware that the work rule existed and that the claimant violated the rule. Moreover, the employer must also establish that the claimant's actions were intentional or deliberate, and the employee's actions must be considered in light of all of the circumstances, including the reasons for his or her noncompliance with the employer's directives.Phila. Parking Auth. v. Unemployment Comp. Bd. of Review, 1 A.3d 965, 968 (Pa. Cmwlth. 2010) (citations omitted). In considering whether a claimant's statements to a superior constituted insubordination, this Court recently noted that:
If the employer meets its burden, the burden then shifts to the claimant to demonstrate good cause for her conduct.
Insubordination is defined as
[a] willful disregard of an employer's instructions, esp. behavior that gives the employer cause to terminate a worker's employment . . . [or] an act of disobedience to proper authority; esp., a refusal to obey an order that a superior officer is authorized to give.
Black's Law Dictionary 870 (9th ed. 2009). The common dictionary meaning of the term insubordinate follows:
unwilling to submit to authority . . . disobedience of orders, infraction of rules, or a generally disaffected attitude toward authority. . . .
Scott v. Unemployment Comp. Bd. of Review, 105 A.3d 839, 846 (Pa. Cmwlth. 2014) (italics added). This Court has also held: "[V]ulgarity, even in a single instance, may constitute willful misconduct where the vulgarity is unjustified, unprovoked, unnecessary or uncalled for under the circumstances." Dodson v. Unemployment Comp. Bd. of Review, 437 A.2d 1080, 1082 (Pa. Cmwlth. 1981) (emphasis added); see also Leone v. Unemployment Comp. Bd. of Review, 885 A.2d 76, 81 (Pa. Cmwlth. 2005) ("An employee's use of abusive, vulgar or offensive language evidences a disregard of standards that an employer can rightfully expect of its employees.").
Webster's Third New International Dictionary 1172 (2002). . . . [T]his Court has explained that '[a]n employee's use of abusive, vulgar or offensive language with a superior is a form of insubordination[.]' Brown v. Unemployment Comp[.] B[d.] of Review, 49 A.3d 933, 937 (Pa. Cmwlth. 2012).
"[T]he [UCBR] is the ultimate factfinder and is empowered to resolve conflicts in the evidence and to determine the credibility of witnesses. Findings made by the [UCBR] are conclusive and binding on appeal if the record, when examined as a whole, contains substantial evidence to support those findings." Kelly v. Unemployment Comp. Bd. of Review, 776 A.2d 331, 336 (Pa. Cmwlth. 2001). Further, "[i]t 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 evidence to support the findings actually made." Ductmate, 949 A.2d at 342.
A review of the record demonstrates that there is substantial evidence to support the UCBR's findings and conclusions. Guy testified that he personally gave Claimant a copy of Employer's policies at the time of his hire, and that Employer's policies prohibited insubordination and included a required minimum eight hour advanced notification for call-offs. Guy described the June 18, 2013 telephone conversation with Claimant wherein Claimant objected to the request to appear for his shift and used vulgarity towards his supervisor. Finally, Guy testified that Claimant's employment was terminated for insubordination. Claimant provided no evidence to establish good cause for his insubordination or to justify the vulgarity. Thus, Guy's testimony, which the UCBR found credible, constitutes substantial evidence supporting the UCBR's proper legal conclusion that Claimant was insubordinate and engaged in willful misconduct. Based upon that testimony, the UCBR properly determined that Claimant was ineligible for UC benefits.
Because Claimant's employment was terminated immediately after the June 18, 2013 telephone conversation occurred, it is clear that Employer terminated Claimant's employment based upon that conversation, which involved Claimant's use of vulgarity towards a manager. See Dodson. Thus, Claimant's argument that the February 2013 incident was too remote in time to support the UCBR's finding of willful misconduct does not undermine that finding and is without merit. --------
For all of the above reasons, the UCBR's order is affirmed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 25th day of February, 2015, the Unemployment Compensation Board of Review's June 26, 2014 order is affirmed.
/s/_________
ANNE E. COVEY, Judge