Opinion
No. 1086 C.D. 2012
01-07-2013
Rose R. Walker, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Rose R. Walker (Claimant) petitions for review of the Order of the Unemployment Compensation Board of Review (Board) denying her claim for unemployment compensation (UC) benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law). On appeal, Claimant argues that Trans Union, LLC (Employer) did not meet its burden to prove that Claimant committed willful misconduct because: (1) there is no firsthand evidence that Claimant refused to process a customer's request; (2) substantial evidence does not support the Board's findings; and (3) Claimant's actions did not rise to the level of willful misconduct. Because there is substantial evidence to support the Board's findings and discerning no error, we affirm the Board's Order.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
Claimant filed an application for UC benefits on October 16, 2011, which was denied by the Allentown UC Service Center (Service Center) on December 23, 2011. Claimant filed an untimely appeal to the UC Referee, who held a hearing on January 24, 2012, at which Claimant, pro se, and two witnesses for Employer appeared and testified. The Referee issued a Decision and Order dismissing Claimant's appeal as untimely.
Claimant filed a timely appeal to the Board on February 21, 2012. The Board remanded the matter to the Referee to receive testimony and evidence on the merits of Claimant's appeal. Claimant, now represented by counsel, and two witnesses for Employer, John Forrest (HR representative) and Thomas Kerns (Team Leader), appeared and testified at the remand hearing on April 6, 2012. Deeming Claimant's appeal to be timely because she did not receive the Service Center's Notice of Determination, the Board addressed the merits of Claimant's claim for UC benefits. Resolving the conflicts in testimony in favor of Employer, and crediting Employer's witnesses, the Board made the following pertinent findings of fact:
1. The claimant was last employed as a full-time relationship account executive by Trans Union, LLC from September 25, 2005. Her last day of work was September 29, 2011.
2. On September 8, 2011, a customer made a request to the claimant to add a service to its account.(Board Op., Findings of Fact (FOF) ¶¶ 1-12.) Based upon these findings, the Board concluded that Employer met its burden of establishing that Claimant was discharged for willful misconduct in connection with her work, finding "[C]laimant's refusal to perform a normal job duty of adding a service to a customer's account to be beneath the standards of behavior an employer has a right to expect of an employee." (Board Op. at 3.) Claimant now petitions this Court for review.
3. Such request was part of the claimant's job duties.
4. Despite repeated requests from the customer, the claimant failed to follow through with the request.
5. On September 29, 2011, the customer demanded to speak to the claimant's supervisor.
6. The claimant asked the supervisor to handle the customer because she did not "need this sh*t."
7. The claimant vaguely mentioned some problem with her computer, but her supervisor could not find any problem.
8. The supervisor decided that he needed to hand the customer over to another employee because the claimant refused to help the customer.
9. The employer suspended the claimant's employment pending an investigation.
10. On October 4, 2011, the HR representative spoke to the claimant about the situation, but the claimant offered no justification for her behavior. She told the HR representative that she did not "need this sh*t."
11. The claimant did not tell the HR representative that there was any problem with her computer that prevented her from performing the request or that another employee was taking care of the request.
12. The employer terminated the claimant's employment for insubordination.
Claimant filed a request for reconsideration with the Board by letter dated May 29, 2012, (Request for Reconsideration, R. Item 19), which the Board denied by Order dated June 19, 2012. (Board Order, R. Item 21.)
"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 and Southern Life Insurance Co. v. Unemployment Compensation Board of Review, 913 A.2d 331, 334 n.2 (Pa. Cmwlth. 2006).
Claimant first argues that Employer has not met its burden to prove that Claimant committed willful misconduct because there is no firsthand evidence that Claimant deliberately refused to process a customer's request. Claimant contends that the Board's findings are based upon hearsay conversations held between employees who were not present to testify at the remand hearing.
Undoubtedly there is some unobjected to hearsay evidence in the record. "Fortunately, our decision need not turn on this point alone since even hearsay testimony is sufficient to support a finding of the Board if it is not objected to and is corroborated by other competent evidence." Socash v. Unemployment Compensation Board of Review, 451 A.2d 1051, 1053 (Pa. Cmwlth. 1982.) Here, "it is unnecessary that the finding of willful misconduct be supported by substantial evidence absent the hearsay; if it were, the Walker rule would be without effect. All that is necessary is that facts adding weight or confirming the hearsay be established by competent evidence." Id.
For instance, there is testimony by the HR representative that he had been told that Claimant told her supervisor that, "I don't need this sh[*]t." (Hr'g Tr. at 8, R.R. at 51.) Other unobjected to hearsay includes a copy of Employer's termination letter informing Claimant that, when her supervisor asked about a complaint raised by one of Claimant's customers who had been working with her on a request to add a service to the customer's account and indicated that the service had not been added in a reasonable timeframe, Claimant was asked several times to follow up and complete the request, but never did, responding that "I'm not going to do this sh[*]t." (Letter from Employer to Claimant (October 4, 2011), Employer's Separation Information, R. Item 3.)
The Walker rule states that hearsay evidence that is properly objected to is not competent to support a finding of fact, but "[h]earsay evidence, [a]dmitted without objection, will be given its natural and probative effect and may support a finding [of fact] if it is corroborated by any competent evidence in the record." Walker v. Unemployment Compensation Board of Review, 367 A.2d 366, 370 (Pa. Cmwlth. 1976). Walker further states that "a finding of fact based [s]olely on hearsay will not stand." Id.
Here, the record establishes that firsthand testimony supports the finding that Claimant deliberately failed to follow through with her normal job responsibility to add a service to a customer's account upon request. Specifically, Team Leader testified that Claimant never gave him a reason why she would not service her customer's account as requested, stating:
Team Leader's credited testimony included that adding a service to a customer's account was "something that [Claimant] would do in the normal course of business" and "something that she had done previously." (Hr'g Tr. at 10, R.R. at 53.)
[Claimant] had let me know that there was a customer that wanted to speak to me and she asked if I could set up this - - have this product set up . . . . I contacted the customer, because we want to maintain that relationship with the customer. The customer informed me that they had been trying to . . . get this service set up . . . going back to September 8th. So . . . it had been ongoing since September 8th. And the customer said that they were waiting for [Claimant] to send the necessary paperwork to set up that product and they never received it
. . . and there had been attempts between the 8th and the 29th to try and get that from her and it was never received by the customer. So at that point [Claimant] had already made it clear that she didn't - - she asked me to take care of this, even though that was one of her responsibilities. I brought it to my manager's attention . . . and then it was just determined that in the better interest of the customer, just ask someone else to . . . set up the service because [Claimant] did not seem to want to do it.(Hr'g Tr. at 9-10, R.R. at 52-53.) The HR representative then testified that he was aware from company emails that a customer made a request to add a service earlier in the month, explained that this was something that Claimant would normally do, and further testified that he saw additional emails where the customer had unsuccessfully tried to contact Claimant for follow-up. (Hr'g Tr. at 7, R.R. at 50.) The HR representative stated that, even if Claimant had not been in when the customer's email request arrived, Claimant would have been responsible to follow up the next day she was at work. (Hr'g Tr. at 7, R.R. at 50.)
Importantly, Claimant's own testimony supports that Claimant failed to perform the customer's request. In response to a question asking when she first became aware of the customer's request, Claimant did not deny that she received the request, testifying that she "was not sure of the date," noting that "[i]f I had my computer I could [pinpoint the date]." (Hr'g Tr. at 12-13, R.R. at 55-56.) When asked what reason she gave Team Leader why she did not perform the customer's request, Claimant actually acknowledged that she had a customer request that she did not fulfill, stating, "I didn't give him a reason. I just asked him if he would complete it." (Hr'g Tr. at 12, R.R. at 55.) Therefore, the Board's finding that, "[d]espite repeated requests from the customer, the claimant failed to follow through with the request," (FOF ¶ 4), is supported by competent evidence.
Claimant further maintains that, in addition to being terminated for willful misconduct for refusing to process a customer's request, she also was terminated for cursing and using vulgarity with her supervisor, (FOF ¶ 6), and with the HR representative, (FOF ¶ 10). However, Claimant contends that there is no firsthand evidence that she cursed at her supervisor and she vehemently denies cursing at the HR representative. Claimant argues that, even assuming she ever used such vulgarity, it was provoked and, therefore, not a bar to UC benefits. Because we conclude that Claimant was discharged for willful misconduct for insubordination by refusing to assist a customer, not only for cursing, there is no need to reach the issue of whether there was competent evidence that Claimant used vulgarity and, if so, whether it was provoked.
Claimant further contends that substantial evidence does not support the Board's findings. Substantial evidence is defined as "such relevant evidence which a reasonable mind would accept as adequate to support a conclusion." Guthrie v. Unemployment Compensation Board of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999). Additionally, 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). That Claimant may have given "a different version of the events, or . . . might view the testimony differently than the Board, is not grounds for reversal if substantial evidence supports the Board's findings." Tapco, Inc. v. Unemployment Compensation Board of Review, 650 A.2d 1106, 1108-09 (Pa. Cmwlth. 1994). And, if the Board's findings are supported by substantial evidence, those findings are conclusive on appeal. Geesey v. Unemployment Compensation Board of Review, 381 A.2d 1343, 1344 (Pa. Cmwlth. 1978).
In viewing the testimony in the light most favorable to Employer as the prevailing party, we conclude that the testimony of Team Leader, the HR representative and Claimant, as set forth above, constitutes substantial evidence that supports the Board's findings. In making its findings, the Board found Employer's witnesses to be credible and resolved any conflicts in the testimony in favor of Employer. (Board Op. at 3.) To support her version of the events, Claimant relies only upon her own testimony. However, the Board did not credit Claimant's testimony and it is beyond this Court's purview to make different credibility determinations.
The law is clear that the Board is the ultimate finder of fact, and "questions of credibility and evidentiary weight to be given [to] conflicting testimony are matters for" the Board as fact finder and not for a reviewing court. Freedom Valley Federal Savings and Loan Association v. Unemployment Compensation Board of Review, 436 A.2d 1054, 1055 (Pa. Cmwlth. 1981).
Finally, Claimant contends that her actions did not rise to the level of those constituting willful misconduct. Claimant contends that it has not been shown that her actions were deliberate or intentional, and that mere inexperience, incompetence, or inability to perform does not support willful misconduct.
Under Section 402(e) of the Law, an employee is not eligible for benefits if "h[er] unemployment is due to h[er] discharge . . . for willful misconduct connected with h[er] work . . . ." 43 P.S. § 802(e).
Willful misconduct has been defined as (1) the wanton and willful disregard of the employer's interest; (2) the deliberate violation of rules; (3) the disregard of standards of behavior which an employer can rightfully expect from [its] employee; or (4) negligence which manifests culpability, wrongful intent, evil design or intentional and
substantial disregard for the employer's interests or the employee's duties and obligations.Elser v. Unemployment Compensation Board of Review, 967 A.2d 1064, 1069 n.7 (Pa. Cmwlth. 2009). The failure to perform normal job duties can constitute willful misconduct. Lechmanik v. Unemployment Compensation Board of Review, 409 A.2d 521, 523 (Pa. Cmwlth. 1980). The employer has the burden of proving that an employee was discharged for willful misconduct. Graham v. Unemployment Compensation Board of Review, 840 A.2d 1054, 1056 (Pa. Cmwlth. 2004). Once the employer has established a showing of willful misconduct, "the burden then shifts to the claimant to establish good cause for her actions." Bruce v. Unemployment Compensation Board of Review, 2 A.3d 667, 671 (Pa. Cmwlth. 2010). "A claimant has good cause if h[er] . . . actions are justifiable and reasonable under the circumstances." Docherty v. Unemployment Compensation Board of Review, 898 A.2d 1205, 1208-09 (Pa. Cmwlth. 2006). Whether a claimant's conduct constitutes willful misconduct is a question of law reviewable by this Court. Orend v. Unemployment Compensation Board of Review, 821 A.2d 659, 661 (Pa. Cmwlth. 2003).
Here, as the HR representative explained, Claimant's failure to perform her job by adding a service to one of her customer's accounts was a failure to carry out a routine duty. (Hr'g Tr. at 9, R.R. at 52.) Team Leader further explained that "this is a normal task . . . . if [customers] make a request, it's expected that you [inaudible] [respond appropriately]." (Hr'g Tr. at 9, R.R. at 52.) The HR representative testified that Claimant's employment was terminated because "she had refused to complete . . . a service request . . . and was asked several times to do it." (Hr'g Tr. at 7, R.R. at 50.) Because an Employer can rightfully expect its employees to faithfully carry out their routine duties, such as servicing customer's account requests, we cannot consider Claimant's refusal to perform routine duties that are necessary to the smooth functioning of Employer's business as insignificant. Thus, the Board did not err by finding that Claimant's conduct constituted willful misconduct.
Citing Wetzel v. Unemployment Compensation Board of Review, 370 A.2d 415, 417 (Pa. Cmwlth. 1977), Claimant contends that she did not receive repeated warnings and, therefore, any incompetence, inexperience, or inability to perform her job was not sufficient for a finding of willful misconduct pursuant to Section 402(e) of the Law. However, the willful misconduct in Wetzel was not only attributed to the claimant's failure to heed repeated warnings not to crochet while on the job, but also to neglecting her normal duties in failing to keep a hospital supply room properly stocked. Id. --------
Moreover, Claimant did not show good cause for her conduct. Although Claimant attempted to explain her actions by testifying that her "computer kept shutting down," and that she had contacted "Tom" to do it because he sometimes could "have . . . things pushed through," (Hr'g Tr. at 12, R.R. at 55), the Board did not find Claimant's explanations credible. (Board Op. at 3.) In sum, there is no credited evidence constituting good cause why Claimant failed to service her customer's account for nearly one month.
For the foregoing reasons, the Board's Order is affirmed.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, January 7, 2013, the Order of the Unemployment Compensation Board of Review entered in the above-captioned matter is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge