Opinion
No. 2471 C.D. 2011
09-10-2012
Doug Vaughn, Jr., Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Doug Vaughn, Jr. (Claimant), pro se, petitions for review of the Order of the Unemployment Compensation Board of Review (Board) that affirmed the decision of an Unemployment Compensation Referee (Referee) finding Claimant ineligible for Unemployment Compensation (UC) benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law), 43 P.S. § 802(e). The Board affirmed the Referee's determination that Claimant's actions in leaving a profane voicemail for a customer (Customer) of PETCO Animal Supplies Stores, Inc. (Employer) constituted willful misconduct. For the following reasons, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended. Section 402(e) provides that a claimant will be ineligible for benefits for any week that his unemployment is due to willful misconduct in connection with his work. 43 P.S. § 802(e).
Claimant worked as a grooming assistant for Employer until his discharge on June 8, 2011. Claimant applied for UC benefits and the Philadelphia UC Service Center (Service Center) found Claimant eligible for benefits. Employer appealed and the matter was assigned to the Referee for a hearing. Claimant and Employer both presented witnesses. Following the hearing, the Referee made the following findings of fact:
1. Claimant was last employed as a Grooming Assistant with [Employer]. Claimant's rate of pay was $7.25 per hour and his last day of work was June 8, 2011.
2. Employer discharged [C]laimant because [C]laimant left an inappropriate voicemail for [C]ustomer who called and complained about him.
3. Claimant and [C]ustomer had the relationship outside the workplace. [C]ustomer and [C]laimant lived in the same neighborhood and had a history of discord between them.
4. On or about May 27, 2011, [C]ustomer came into Employer's store to secure a grooming appointment for her dog. [C]ustomer accused [C]laimant of having an attitude with her. Claimant did not assist [C]ustomer with an appointment and did not provide any services to her.
5. Several days later, [C]laimant left a voicemail for [C]ustomer stat[ing] that he did not want to wash her "dirty ass dog under any circumstances" and that he did not "appreciate her attitude." Claimant told her not to come to his place of employment and harass
him because he did not appreciate it. Claimant used other expletives in the voice message.(Referee Decision, Findings of Fact (FOF) ¶¶ 1-8.) The Referee held that Employer satisfied its burden of proving that it discharged Claimant for willful misconduct; thus, Claimant was ineligible for benefits under Section 402(e) of the Law. The Referee rejected Claimant's argument that his voicemail, and any communication with Customer, was not connected with his work, but was related to a personal family feud between his family and Customer's family. The Referee found that it was clear that Customer visited Employer's store, there was an altercation at the store between Claimant and Customer and, in the voicemail, Claimant specifically referred to that in-store altercation and stated that he, in his role as Employer's employee, would not provide dog grooming services that were a part of his job. (Referee Decision at 2.) The Referee did not credit Claimant's testimony that he was referring to a different job and held that, notwithstanding the non-work-related conflict, Claimant's actions, which included using expletives, were inappropriate, detrimental to Employer's interests, and had a negative effect on Employer's Customer. (Referee Op. at 2.) Claimant appealed and the Board affirmed, adopting and incorporating the Referee's findings of fact and conclusions of law into its Opinion and Order. Claimant now petitions this Court for review.
6. After the voice message, [C]laimant told [E]mployer that a customer, with whom he had an outside connection, may call and complain about him.
7. The next day, [C]ustomer contacted [E]mployer and allowed [E]mployer to hear the voice message [C]laimant left for her.
8. Because of past incidents of inappropriate behavior by [C]laimant, [C]ustomer['s] complaint and voice message, Employer discharged [C]laimant.
Employer played a recording of the voicemail into the record, which revealed the following message:
This is Doug Vaughn. Listen, I don't appreciate you calling my job. I don't have time to talk to you at my work. But I made sure to talk to my manager. I did not under any circumstances want to wash your dirty ass dog for nothing. I don't appreciate you [inaudible]. And I'm real sorry that you didn't pick up the phone [inaudible]. I [inaudible] will come over to your house and say to you that, you know, you're not an adult. But I don't appreciate the way you talked to me. And so, you get what you get. So if I've got an attitude, it's because of your chick [inaudible]. I don't wash your dirty ass dog for nothing. So you can [inaudible] f[******] lies or whatever your perception of me straight because this G[*]dd[**]n thing is [inaudible]. You don't go to my place of employment and harass me like some [inaudible] black n[*****]. You know I don't appreciate it. You and your [inaudible] hell of a lot of nerve telling me that's the way my family is treating you. My family [is] too busy [inaudible] family. You've got a lot of f[******] nerve. You have f[******] got a lot of f[******] nerve. And I'm not waiting on your dog. So don't call there asking about me or any G[*]dd[**]n thing because I don't f[******] appreciate it. And if I see you and you come up to me with that attitude and s[***], you're going to be [inaudible]. [inaudible] on, okay?(Referee Hr'g Tr. at 18 (alterations added).) Claimant called Customer from his home phone. (Referee Hr'g Tr. at 27-29.)
"The Court's review is limited to determining whether constitutional rights were violated, whether an error of law was committed, whether a practice or procedure of the Board was not followed or whether the findings of fact are supported by substantial evidence in the record." Western & Southern Life Insurance Co. v. Unemployment Compensation Board of Review, 913 A.2d 331, 334 n.2 (Pa. Cmwlth. 2006).
On appeal, Claimant: challenges several findings of fact because they were based on hearsay testimony; asserts that Employer and Customer violated the Wiretapping and Electronic Surveillance Control Act, 18 Pa. C.S. §§ 5701-5782, (Wiretap Act) by submitting the voicemail to third parties—the Referee and the Board—without Claimant's permission; and contends that the Board erred in finding that Claimant's actions constituted willful misconduct under Section 402(e).
Claimant asserts nine allegations of error in his Statement of Questions Involved, which we have consolidated and reordered for ease of resolution. In addition, the argument section of his brief consists of 34 enumerated paragraphs, in which he expands upon those nine alleged errors. Many of these paragraphs relate to the admission of certain documents, including Service Center Exhibits 6-14, and 17, because he had objected to their admission. However, the Referee: sustained Claimant's hearsay objections to exhibits 6, 7, 9-10, and 11 and excluded them from the record; admitted exhibits 8 and 12-13, an email and performance evaluations, respectively, not for the truth of the information therein, but for the limited purpose of showing that the email had been sent to one of the witnesses present and the performance evaluations were issued to Claimant; and admitted exhibit 14 because the author of the email was present at the hearing and, therefore, was subject to cross-examination. Exhibit 17, Employer's Notice of Application, was admitted over Claimant's general objection that the information therein was unfounded because he did not engage in the alleged misconduct. (Referee Hr'g Tr. at 6-12.) Additionally, Claimant asserts that the Referee and Employer's witnesses improperly spoke about the present matter off the record. However, when they went back on the record, both of Employer's witnesses indicated that there was nothing discussed off the record, and Claimant did not object or otherwise indicate on the record that his case was discussed off the record. Having failed to object to the alleged error at the hearing, Claimant's argument is waived. Schaal v. Unemployment Compensation Board of Review, 870 A.2d 952, 954-55 (Pa. Cmwlth. 2005) (stating that a party "waives review of an issue by failing to raise it before the referee when he had an opportunity to do so.") Finally, Claimant objects to the official transcript, arguing that a large amount of his and his witness's testimony was not recorded as evidenced by the large number of inaudible, ellipses, and phonetic notations in the transcript. Our review of the record reveals that neither Claimant's testimony nor his witness's testimony was made incomplete or ambiguous by these notations, and the notations did not affect the meaning or context of that testimony. See Leone v. Unemployment Compensation Board of Review, 885 A.2d 76, 80 (Pa. Cmwlth. 2005) (stating that the presence of notations, such as inaudible, in a transcript did not violate a claimant's due process rights where they did not render that testimony incomplete or ambiguous and the omissions did not affect the meaning, context or import of the testimony). It appears that the inaudible notations were instances when the transcriber could not understand the statements, the phonetic notations were used to indicate where the transcriber spelled something phonetically, and the ellipses occurred where testimony trailed off or where two people were speaking at the same time. Accordingly, we conclude that our appellate review is not hindered by the state of the transcript.
Claimant first asserts, in relevant part, that Findings of Fact 4, 6, and 8 are not supported by substantial, competent evidence in the record, but are based on hearsay testimony. Findings of fact are conclusive on appeal as long as they are supported by substantial evidence in the record. Grieb v. Unemployment Compensation Board of Review, 573 Pa. 594, 599, 827 A.2d 422, 425 (2003). Substantial evidence is defined as "such relevant evidence which a reasonable mind might accept as adequate to support a conclusion." Philadelphia Gas Works v. Unemployment Compensation Board of Review, 654 A.2d 153, 157 (Pa. Cmwlth. 1995). In making this determination, we "must view the record in a light most favorable to the party which prevailed before the Board, giving that party the benefit of all logical and reasonable inferences deducible from the evidence." Stringent v. Unemployment Compensation Board of Review, 703 A.2d 1084, 1087 (Pa. Cmwlth. 1997). The Board is the ultimate finder of fact in unemployment compensation cases and questions regarding the weight of the evidence and witness credibility are solely within its province. First Federal Savings Bank v. Unemployment Compensation Board of Review, 957 A.2d 811, 815 (Pa. Cmwlth. 2008). That a claimant might believe a different version of the events took place does not create grounds for reversal if the Board's findings are supported by substantial evidence. Tapco, Inc. v. Unemployment Compensation Board of Review, 650 A.2d 1106, 1108-09 (Pa. Cmwlth. 1994). Upon reviewing the record, and the reasonable inferences therein, in the light most favorable to Employer, as the prevailing party, we conclude that there is substantial, competent evidence in the record to support the challenged findings of fact.
Finding of Fact 4 states, "[o]n or about May 27, 2011, [C]ustomer came into Employer's store to secure a grooming appointment for her dog. [C]ustomer accused [C]laimant of having an attitude with her. Claimant did not assist [C]ustomer with an appointment and did not provide any services to her." (FOF ¶ 4.) This finding of fact is supported by the voicemail, the testimony of Employer's General Manager (General Manager), and Claimant's testimony. In the voicemail, Claimant states
Claimant argues that the voicemail is hearsay and was altered by Customer or Employer. However, since Claimant is a party to this matter, his remarks on the voicemail fall within the exception to the hearsay rule for party admissions. Rule 803(25) of the Pennsylvania Rules of Evidence 803(25), Pa. R.E. 803(25) (providing that a party-opponent's own statement that is offered against the party is excluded from the hearsay rule). Moreover, Claimant does not disagree that he left Customer the voicemail and does not assert that he did not say those things. (Referee Hr'g Tr. at 29.) Although Claimant contends that the voicemail was altered in some manner by Customer or Employer, he did not offer any particular example of an alteration or a reason to believe that it had been altered. (Referee Hr'g Tr. at 16-18.) The Referee and the Board were satisfied by the authenticity of the voicemail and admitted it into evidence. The Board determines the weight of admitted evidence, and this determination is not subject to appellate review. First Federal Savings Bank, 957 A.2d at 815.
Listen, I don't appreciate you calling my job. I don't have time to talk to you at my work. But I made sure to talk to my manager. . . I did not under any circumstances want to wash your dirty ass dog for nothing. . . . But I don't appreciate the way you talked to me. . . . So if I've got an attitude, it's because of your chick [inaudible]. . . . You don't go to my place of employment and harass me. . . . I'm not waiting on your dog. So don't call there asking about me.(Referee Hr'g Tr. at 18 (emphasis added).) Although Claimant asserts that the "job" and "work" he referred to in the voicemail was not his position with Employer, but his other work, which involves cutting hair, washing neighbors' dogs, and yard work, the Board specifically did not credit Claimant's assertion. (Board Op. at 1.) The General Manager testified that, when Customer called to complain about the voicemail, she also complained that, when she came to the store with her dog, Claimant had an attitude with her. Finally, Claimant testified that he did not and has not helped or waited on Customer. All of the witnesses testified that these events took place between May 26 and May 31, 2011. (Referee Hr'g Tr. at 15, 19-21, 27, 29-30, 32-35.) We conclude that a reasonable mind could consider this testimony, the voicemail, and all of the reasonable inferences deducible therefrom as adequate to support Finding of Fact 4. Therefore, that factual finding is supported by substantial evidence and is conclusive on appeal. Grieb, 573 Pa. at 599, 827 A.2d at 425.
Although the General Manager's testimony is hearsay, Claimant did not object to it as such during the hearing and, therefore, it can be relied upon for its natural probative value because it is corroborated by Claimant's voicemail, which refers to Customer coming to his place of employment, his not waiting on Customer, and allegations that he had an attitude with the Customer. Walker v. Unemployment Compensation Board of Review, 367 A.2d 366, 370 (Pa. Cmwlth. 1976) (stating that objected-to hearsay may not be used to support a finding of fact, but hearsay evidence, admitted without objection, will be given its natural probative effect if it is corroborated by any other competent evidence in the record); Chapman v. Unemployment Compensation Board of Review, 20 A.3d 603, 610 n.8 (Pa. Cmwlth. 2011) (stating that admissions of a party are a recognized exception to the hearsay rule and, therefore, are competent evidence on which a hearsay statement may be corroborated).
Finding of Fact 6 provides, "[a]fter the voice message, [C]laimant told [E]mployer that a customer, with whom he had an outside connection with, may call and complain about him." (FOF ¶ 6.) Employer's General Manager testified that, the day before Customer contacted Employer about the voicemail, Claimant came to her "and said this customer might call and complain about me. . . . but none of it's true." (Referee Hr'g Tr. at 18-19, 22.) Claimant even mentioned in the voicemail that he spoke to his manager. (Referee Hr'g Tr. at 18.) This evidence constitutes substantial evidence that supports Finding of Fact 6 and, accordingly, we are bound by that finding. Grieb, 573 Pa. at 599, 827 A.2d at 425.
In Finding of Fact 8, the Board found, "[b]ecause of past incidents of inappropriate behavior by [C]laimant, [C]ustomer['s] complaint and voice message, Employer discharged [C]laimant." (FOF ¶ 8.) The General Manager testified that, after Customer complained about Claimant and she heard the voicemail, Employer investigated the matter and, ultimately, decided to discharge Claimant. Additionally, the General Manager testified, without specifically stating what happened in the incident, that she had spoken with Claimant about another incident on the morning she discharged Claimant. Finally, the record contained prior Employee Performance Notices, which were admitted not for the truth of the complained of conduct, but to show that Employer had issued previous disciplinary reports to Claimant believing that Claimant had committed infractions. (Referee Hr'g Tr. at 14, 17, 20-21; Employee Performance Notices, August 13, 2010, September 10, 2010, and September 30, 2010, Exs. 12-14.) Viewing this evidence in the light most favorable to Employer, as we must, we conclude that this evidence, and the reasonable inferences drawn therefrom, supports Finding of Fact 8.
Claimant also challenges Finding of Fact 1 because he asserts that, in addition to minimum wage, he was to receive tips. However, Claimant did not object to Employer's General Manager's testimony that his pay was $7.25 per hour and, therefore, this issue is waived. Schaal, 870 A.2d at 954-55. Moreover, even if it was not supported by substantial evidence, this finding of fact is not necessary to the determination of whether Claimant engaged in willful misconduct connected with his work.
Next, Claimant asserts that the playing of the voicemail for third parties, i.e., Employer and the Referee, violated the Wiretap Act because it was done without obtaining Claimant's permission, which, Claimant argues, is illegal. Claimant maintains that, although it is permissible to record a telephone conversation for a person's own use, that conversation may not be disclosed to a third party without permission. Claimant, however, misunderstands the Wiretap Act's provisions.
Section 5703 of the Wiretap Act sets forth the criminal provisions of a violation of that law and states, in pertinent part:
Except as otherwise provided in this chapter, a person is guilty of a felony of the third degree if he:18 Pa. C.S. § 5703. "Intercept" is defined as the "[a]ural or other acquisition of the contents of any wire, electronic[,] or oral communication through the use of any electronic, mechanical[,] or other device. . . ." 18 Pa. C.S. § 5702. Pursuant to Section 5704(4), there is an exception "where all parties to the communication have given prior consent to such interception." 18 Pa. C.S. § 5704(4). In Commonwealth v. DeMarco, 578 A.2d 942 (Pa. Super. 1990), the Superior Court held that it was an "irrefutable fact that any reasonably intelligent person leaving a message on an ordinary answering machine would have been aware of, and consented by conduct to, the recording of the message on the answering machine tape." Id. at 948 (emphasis in original). Thus, the Superior Court held that "as a matter of law . . . ordinary answering machine tapes fall within the mutual consent provision of the Wiretap[] . . . Act." Id. In Commonwealth v. Proetto, 771 A.2d 823 (Pa. Super. 2001), the Superior Court extended its holding in DeMarco to electronic communications, such as e-mails and chat room conversations, because persons who are "savvy enough to be using the Internet . . . would be aware of the fact that messages are received in a recorded format, by their very nature, and can be downloaded or printed by the party receiving the message." Proetto, 771 A.2d at 829. The Superior Court further held, in Proetto, that there was no "interception" of the communication where the intended recipient simply forwarded the messages to the third party. Id. at 831.
(1) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, electronic or oral communication;
(2) intentionally discloses or endeavors to disclose to any other person the contents of any wire, electronic or oral communication, or evidence derived therefrom, knowing or having reason to know that the information was obtained through the interception of a wire, electronic or oral communication; or
Claimant's voicemail falls squarely within the holdings of DeMarco and Proetto. Although the recording was not made on an "answering machine tape," as was the recording in DeMarco, 578 A.2d at 948, leaving a voicemail serves the same function as leaving a message on an answering machine. Claimant must have known, when he left his message on Customer's voicemail, that he was being recorded and "consented by conduct to, the recording of the message on the" voicemail. Id. Accordingly, this falls within the exception of Section 5704(4) of the Wiretap Act. Likewise, there was no "interception" because Customer, the intended and actual recipient of the message, simply forwarded Claimant's message to the third parties. Proetto, 771 A.2d at 831. Thus, Claimant's argument on this issue is without merit.
Finally, Claimant challenges the Board's legal conclusion that his conduct constituted willful misconduct in connection with his work. He argues that the voicemail was not related to his work with Employer, but involved an ongoing personal conflict between his family and Customer's family. Claimant again asserts that the "work" and "job" he referred to in the voicemail were his other jobs that he performed around the neighborhood.
Section 402(e) of the Law provides, in pertinent part, that "[a]n employe shall be ineligible for compensation for any week . . . [i]n which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work." 43 P.S. § 802(e). While the Law does not define "willful misconduct," our courts have defined it 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.Philadelphia Parking Authority v. Unemployment Compensation Board of Review, 1 A.3d 965, 968 (Pa. Cmwlth. 2010). The employer bears the burden of proving that the claimant's actions rose to the level of willful misconduct. Docherty v. Unemployment Compensation Board of Review, 898 A.2d 1205, 1208 (Pa. Cmwlth. 2006). If the employer satisfies its burden, the burden shifts to the employee to show that he or she had good cause for his or her conduct. McKeesport Hospital v. Unemployment Compensation Board of Review, 625 A.2d 112, 114 (Pa. Cmwlth. 1993). "A claimant has good cause if his or her actions are justifiable and reasonable under the circumstances." Docherty, 898 A.2d at 1208-09. Whether an employee's actions constitute willful misconduct is a question of law subject to de novo review and must be determined based on a consideration of all of the circumstances. Id. at 1208.
A claimant's use of profanities in front of an employer's customers can constitute willful misconduct. Leone v. Unemployment Compensation Board of Review, 885 A.2d 76, 81 (Pa. Cmwlth. 2005). Likewise, "[a]n employee's use of abusive, vulgar or offensive language evidences a disregard of standards that an employer can rightfully expect of its employees." Id. (citing Allen v. Unemployment Compensation Board of Review, 638 A.2d 448, 450-51 (Pa. Cmwlth. 1994)). Under Leone and Allen, we conclude that Claimant's use of profanity and other offensive language in a voicemail directed at one of Employer's customers constitutes "a disregard of standards that an employer can rightfully expect of its employees." Id. To justify his actions, Claimant asserts that the voicemail did not refer to his job with Employer, but was related to the ongoing personal feud with Customer. However, the Board did not credit that assertion. This decision is not subject to our appellate review. First Federal Savings Bank, 957 A.2d at 815. We note that the voicemail referred to: Customer's dog, which previously had been groomed at Employer's store; Claimant's manager at Employer's store; Claimant not washing Customer's dog; Customer coming or calling and asking for Claimant at his job; Claimant not waiting on Customer; and the reason Claimant had an attitude with Customer. (Referee Hr'g Tr. at 18.) We conclude that Claimant's actions rise to the level of disqualifying willful misconduct and, therefore, the Board did not err in its determination.
In the voicemail, Claimant uses "f[******]" five times, "G[*]dd[**]n" twice, "n[*****]" once, "s[***]" once, and refers to Customer's dog as "dirty ass dog" twice. (Referee Hr'g Tr. at 18.) --------
Accordingly, the Board's Order is affirmed.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, September 10, 2012, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge