Opinion
No. 770 C.D. 2013
02-11-2014
Ronald E. Vandemark, Jr., Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Ronald E. Vandemark, Jr. (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board) denying his claim for benefits under Section 402(e) of the Unemployment Compensation Law (Law). The Board determined R.F. Fager, Co. (Employer) discharged Claimant for insubordination after he walked off the job and then failed to return to work as specifically directed by Employer. Claimant contends the Board erred in finding him guilty of willful misconduct for refusing to return to work where Employer failed to take appropriate action to stop a coworker from harassing him, and that the coworker's harassment provided him with good cause for leaving work and not returning when requested. For the reasons that follow, 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 Employer from May 2010 until his last day on November 30, 2012, as a full-time truck driver. As a driver, Claimant loaded trucks and delivered roofing shingles to the customers' work sites. Employer's drivers also assisted customers in the warehouse when not making deliveries.
Claimant worked with Phil Supko (Coworker), another driver. Claimant and Coworker drove separate trucks while making deliveries. They did not get along with each other. However, Claimant never informed his direct supervisor, Stephen Ulrich (Supervisor), that Coworker harassed him.
Supervisor informed Claimant that he needed to get along with Coworker in order to get their jobs done. Supervisor told Claimant his relationship with Coworker was an internal problem and that it would be better if the roofing department rather than Employer's administration handled the matter. Supervisor thought Claimant's differences with Coworker were petty because Coworker never did anything that hindered Claimant from doing his job.
On Friday, November 30, 2012, Claimant reported to work late. He needed to make five deliveries. Claimant clocked in and informed Supervisor that he would not be working there much longer. Claimant then proceeded to the warehouse.
Thereafter, Supervisor received a phone call regarding a potential problem between Claimant and Coworker in the warehouse. Claimant left the warehouse before Supervisor arrived.
Supervisor learned that Claimant went to Employer's administrative building. Supervisor called Employer's Human Resources Manager, James Troebliger (HR Manager). Supervisor and HR Manager called Claimant's telephone, but he did not answer.
Approximately an hour and a half later, Claimant called Supervisor, who informed him that he needed to return to work. Claimant refused. Supervisor then asked Claimant to speak with HR Manager. When Claimant spoke with HR Manager, Claimant told him that he did not want to talk about the incident. HR Manager told Claimant he had a lot of deliveries to make and that Employer was in a bind.
However, Claimant responded that he would not return to work that day. HR Manager then told Claimant there would be severe consequences to his actions. Claimant responded "don't give me that or I'll sue your ass," and slammed the phone down. Thereafter, HR Manager twice tried to page Claimant, who did not respond.
See Board Op., 4/1/2/13, Finding of Fact (F.F.) No. 26; Notes of Testimony (N.T.), 2/7/13 at 29.
Claimant reported for work on the following Monday. Employer discharged Claimant for insubordination for failing to return to work the previous Friday after being directed to do so by Supervisor and HR Manager.
The Board found Employer's policies prohibited insubordination and, in particular, refusing to perform any job or work assignment given by a supervisor or company owner. The Board further found Claimant knew or should have known of Employer's policy.
In determining that Claimant's actions leading to his discharge constituted willful misconduct, the Board found the testimony of Employer's witnesses credible and resolved the conflicts in Employer's favor. In its decision, the Board reasoned:
Here, [Claimant] was discharged for insubordination, and specifically for failing to return to work on November 30, 2012, after he was directed to do so by [Supervisor] and [HR Manager].Bd. Op. at 4.
The Board finds that [Claimant] has failed to justify his refusal to perform the job after being asked to do so by [Supervisor] and [HR Manager]. The Board finds that [Employer's] requests were reasonable.
[Claimant] testified his stomach was in knots, and that he was afraid to make a delivery because he was not mentally capable of doing the job as a result of his interactions with [Coworker]. The Board does not find [Claimant's] testimony credible. Therefore, [Claimant's] actions rise to the level of willful misconduct.
II. Issues
Claimant petitions for review. He contends the Board erred in finding him guilty of willful misconduct where the Board overlooked Employer's role in failing to curtail further incidents of harassment after receiving notice of harassing acts in the workplace, which ultimately caused Claimant to flee the worksite and not return. Claimant asserts the record did not support the Board's findings that Supervisor was unaware of Coworker's continued harassment of Claimant. Claimant also argues the Board erred in determining he did not have good cause for leaving work and not returning when instructed to do so because he was distraught over the problems with Coworker.
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. Doyle v. Unemployment Comp. Bd. of Review, 58 A.3d 1288 (Pa. Cmwlth. 2013). Substantial evidence is evidence which a reasonable mind would accept as adequate to support a conclusion. Umedman v. Unemployment Comp. Bd. of Review, 52 A.3d 558 (Pa. Cmwlth. 2012).
III. Discussion
A. Argument
1. Willful Misconduct
Claimant first contends the Board erred in finding, under the particular circumstances of this case, that his actions in walking off the job and refusing to return constituted willful misconduct. He asserts Employer's failure to adequately address the problem of Coworkers' harassment of Claimant, as required by Employer's written policies, ultimately led to Claimant's actions on his last day of work.
To that end, Claimant asserts he informed Supervisor of his problems with Coworker, and that he left work because of problems with Coworker on a prior occasion. However, Supervisor failed to comply with Employer's written policies for dealing with harassment by not informing Employer's administration of the problem. Claimant points out that Employer's Employee Handbook provides in part (emphasis by bolding added):
POLICY AGAINST HARASSMENT AND RETALIATION
[Employer] is strongly committed to providing a professional working atmosphere free from sexual or other forms of harassment. In keeping with this commitment, we will not tolerate unlawful harassment of our employees by anyone, including any supervisor, co-worker or third party.
* * * *
Complaint Procedure
All employees are responsible for helping to enforce this policy against harassment. Any employee that feels he or she has been a victim of harassment or has witnessed any conduct that may be inconsistent with this policy should immediately notify their Supervisor, a Company Owner, or Human Resources Manager, so the situation can be promptly investigated and remedied.
You may also file harassment and discrimination claims in writing by addressing your complaint to the Human Resources Department ....
* * * *
When making a report of discrimination or harassment it is important that you provide as much information as possible, in writing, including details of the alleged conduct, any physical evidence of the harassment that may exist, the names of all employees involved in the harassment, names of employees who may have
experienced similar harassment, and any individuals who observed or witnessed the harassment.Referee's Hr'g, 2/7/13, Employer's Ex. 1 (Employee Handbook at 8-9).
Responsive Action
All complaints will be handled in a timely manner. Confidentiality will be maintained throughout the investigation to the extent consistent with legal compliance.
Any supervisor, manager, or Human Resources professional who becomes aware of harassment or any complaint of harassment under this policy and fails to notify the proper parties or take corrective action pursuant to this policy will be subject to disciplinary action, up to and including dismissal.
Certified Record (C.R.) at Item #9.
Here, Claimant asserts, HR Manager testified he had no knowledge that Claimant previously walked off the job as a result of problems with Coworker. Although Supervisor was aware of the previous incident between Claimant and Coworker which resulted in Claimant walking off the job, Supervisor deemed this to be an internal problem. He told Claimant that it would be in his best interests to handle the problem in the roofing department as opposed to talking to Dick Fager, Jr. (Owner). See Referee's Hr'g, Notes of Testimony (N.T.) at 20-23. By failing to notify Employer's administration or human resource department of the first incident, Claimant argues Supervisor allowed the issues with Coworker to fester.
Claimant, however, acknowledges that he contacted Owner following the first incident. N.T. at 44. Owner told Claimant he would meet with Supervisor to resolve the problem. Id. Thereafter, for a couple of weeks, there were no problems. Id. at 54.
Nonetheless, Claimant contends, given the past incidents, Employer should have permanently remedied the harassment in accord with its written policies in the handbook. For example, Employer could have somehow separated Coworker from Claimant or found some other viable solution. However, Employer took no action, which led to Coworker's continued harassment of Claimant. Given Employer's lack of assistance, Claimant asserts the Board erred in determining Claimant's actions on his last day of work, which were provoked by Coworker's harassment, constituted willful misconduct. In determining whether an employer reasonably applied a rule or policy, a reviewing court may consider whether application of the rule or policy was fair and just under the circumstances. Spirnak v. Unemployment Comp. Bd. of Review, 557 A.2d 451 (Pa. Cmwlth. 1989).
2. Good Cause
Claimant also contends his actions leading to his discharge were just and reasonable under the circumstances and therefore cannot be considered willful misconduct. Maldonado v. Unemployment Comp. Bd. of Review, 503 A.2d 95 (Pa. Cmwlth. 1976). He asserts that if he stayed on the worksite on November 30, 2012, he would have been involved in a physical confrontation with Coworker. Engaging in a fight with another employee on the employer's premises cannot be considered reasonable or justifiable under any circumstances. See Rivera v. Unemployment Comp. Bd. of Review, 526 A.2d 1253 (Pa. Cmwlth. 1987) (even in the absence of a written policy, fighting on the job, although to some extent provoked, is considered inimical to the bests interests of the employer and, as such, willful misconduct); Clark v. Unemployment Comp. Bd. of Review, 452 A.2d 106 (Pa. Cmwlth. 1982) (where claimant could have retreated from an altercation, but did not, self-defense does not constitute good cause for fighting).
Here, Claimant maintains he reacted admirably to the events surrounding him. He avoided a conflict with Coworker, he tried to reach out for assistance from Employer, and he elected not to return to work when his health would not permit it. Therefore, Claimant asserts he established good cause for leaving work and not returning as requested by Employer on November 30, 2012. Clark.
B. Analysis
Willful Misconduct/Good Cause
Initially, we note, 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). The employer bears the initial burden of establishing a claimant engaged in willful misconduct. Id. Whether a claimant's actions constitute willful misconduct is a question of law fully reviewable on appeal. Id.
Here, the Board determined Employer discharged Claimant for insubordination for failing to return to work on November 30, 2012, after he was directed to do so by Supervisor and HR Manager. Bd. Op., F.F. No. 32. HR Manager testified he made the decision to terminate Claimant because he refused a direct order to return to work after walking off the job during the morning of November 30. N.T. at 30.
An employee's direct refusal to comply with a directive of his employer can amount to willful misconduct under Section 402(e) of the Law. Simpson v. Unemployment Comp. Bd. of Review, 450 A.2d 305 (Pa. Cmwlth. 1982). However, before we can determine whether the employee's noncompliance rises to the level of willful misconduct, we must evaluate not only the reasonableness of the employer's request, but also the employee's reason for noncompliance. Id. If the employee's conduct was reasonable or justified under the circumstances, it cannot be considered willful misconduct. Id.
Summarizing here, Claimant walked off the job on November 30 without notifying Supervisor he was leaving. F.F. No. 17; N.T. at 22. HR Manager and Supervisor then called Claimant and left a message that he needed to report back to work or call. F.F. Nos. 19-20; N.T. at 28. Approximately an hour and a half later, Claimant spoke to HR Manager over the phone and told him he was not returning to work. F.F. No. 21; N.T. at 29.
HR Manager recalled the contents of the phone conversation with Claimant, which led to the decision to terminate him, as follows:
That call was a little after 10:00, I believe, and I said to [Claimant]. I said, you know, What's the problem? He said, I don't want to talk about it. And I said, Well, you got to talk about it. I said, You just can't walk off the job. And he said, Well, I didn't walk off the job. I said, Well, if you didn't walk off the job, are you quitting? He says, No, I'm not quitting. I said, Well, if you are not quitting and you didn't walk off the job, what are you doing? He says, Well, I don't want to talk about this. He said, If you want to talk about this, talk to my customers first and I'll talk to you. And I said, Ron. I said, You just can't leave the workforce. I said, You know we got a lot of deliveries today, and we're really in a bind. He said, Well, I'm not coming back today. I said, Ron. I said, There will be severe consequences to your actions. And he told me. He said, Well, don't give me that or I'll sue your ass, and he slammed the phone down in my ear.Id. at 29.
As noted above, the Board found the testimony of Employer's witnesses credible and resolved the conflicts in the testimony in Employer's favor. In particular, the Board found HR Manager informed Claimant that there were a lot of deliveries to make and that Employer was in a bind. F.F. No. 24; N.T. at 29. Claimant responded that he was not coming back and that he did not want to talk about it. F.F. Nos. 23, 25; N.T. at 29.
The Board is the ultimate fact-finder in unemployment compensation cases and is empowered to resolve all issues of witness credibility, conflicting evidence and evidentiary weight. Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338 (Pa. Cmwlth. 2008). Further, it is irrelevant whether the record includes evidence that would support findings other than those made by the Board; the proper inquiry is whether the evidence supports the findings actually made. Id. In addition, the party prevailing below is entitled to the benefit of all reasonable inferences drawn from the evidence. Id.
Given Claimant's leaving work early in the morning on a scheduled work day, and Employer's need to make a lot of deliveries that day, we agree with the Board that Employer's directive to return to work was reasonable under the circumstances. Simpson.
Further, Claimant never informed Supervisor or HR Manager that he was not feeling well on November 30, 2012. F.F. No. 28. The Board rejected as not credible Claimant's testimony that he informed Supervisor when he came in on November 30 that his stomach was in knots as a result of continued harassment from Coworker. See Bd. Op. at 4. Moreover, when Claimant talked to HR Manager on the phone, he did not provide a reason for not returning to work. N.T. at 29.
Given Claimant's conduct on November 30, we must conclude he failed to establish that his actions were either reasonable or justified under the circumstances. Where feasible, an employee must notify his employer of his reasons for refusing to comply with rules or directives, unless the reason for noncompliance is self-evident. Bortz v. Unemployment Comp. Bd. of Review, 464 A.2d 609 (Pa. Cmwlth. 1983). In light of Claimant's obligation to inform HR Manager of his reason for refusing to return to work as directed, Claimant's actions, including his failure to explain why he could not return to work, vitiate any good cause for noncompliance with Employer's directive to return to work. Klapec Trucking Co. v. Unemployment Comp. Bd. of Review, 503 A.2d 1122 (Pa. Cmwlth. 1986).
Claimant also contends the record does not support Finding of Fact No. 9, that he never informed Supervisor that Coworker harassed him. To the contrary, Supervisor testified that although he was aware that Claimant and Coworker could not get along, Claimant never stated that Coworker actually harassed him. N.T at 19.
Supervisor further testified that he believed the issues between Claimant and Coworker were an internal problem best handled by the roofing department. F.F. No. 10; N.T. at 2223. However, Supervisor told Claimant he could always talk to Owner. N.T. at 23. Claimant testified he did talk to Owner and that there were no problems for a couple of weeks. N.T. at 44, 54. Finally, Supervisor also testified that he believed the problems between Claimant and Coworker were "petty." F.F. No. 11; N.T. at 23.
Claimant argues that Findings of Fact No. 911 serve as a roadblock to any discussion of whether Employer's inaction contributed to Claimant's separation. We disagree. The Board noted Claimant and Coworker did not get along and that Owner was aware of this problem. Nevertheless, Claimant left work on November 30, 2012 without providing a reason to either Supervisor or HR Manager. More importantly, Claimant refused HR Manager's directive to return to work, without providing a reason, thereby depriving Employer of an opportunity to remedy the situation. As such, Claimant's unreasonable conduct vitiated any good cause for noncompliance with Employer's directive that he return to work. Klapec Trucking Co. v. Unemployment Comp. Bd. of Review, 503 A.2d 1122 (Pa. Cmwlth. 1986).
For the above reasons, we discern no error or abuse of discretion in the Board's order holding Claimant ineligible for benefits under Section 402(e) of the Law. Accordingly, we affirm.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 11th day of February, 2014, for the reasons stated in the foregoing opinion, the order of the Unemployment Compensation Board of Review is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge