Opinion
No. 206 C.D. 2011
01-05-2012
Bryan Walker, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JOHNNY J. BUTLER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
This case was decided before Judge Butler's term ended on January 2, 2012.
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Bryan Walker (Claimant) petitions for review of an adjudication of the Unemployment Compensation Board of Review (Board) that denied him benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law). In doing so, the Board reversed the Referee's decision and found that Claimant's willful misconduct rendered him ineligible for benefits. Claimant contends that his behavior, uttering a profane phrase and using a vulgar gesture while following his supervisor's directive to leave the building, did not constitute willful misconduct. We agree and reverse.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). It provides, in relevant 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).
Claimant began working full-time as a production line laborer for Ibis Tek, LLC (Employer) on March 1, 2008. Claimant was discharged for insubordination in September 2010 and applied for unemployment benefits. The UC Service Center denied his request. Claimant appealed, and a hearing was conducted by a Referee.
At the hearing, Claimant testified about the events of September 3, 2010, that led to his discharge. On that day, Claimant became involved in an altercation with a co-worker who had jumped into the assembly line. The co-worker's action interfered with the flow of work and caused Claimant to fall behind. When the co-worker refused to leave Claimant's area, Claimant called upon the assembly line leader to resolve the interruption. The assembly line leader informed Claimant that his anger was unwarranted and suggested that he and Claimant should discuss the situation with Rich Rivera, Employer's Production Supervisor.
According to Claimant, Rivera instructed Claimant to take five minutes to calm down so that they could discuss the matter. Rivera, who was preoccupied with his company picnic preparation, did not understand that Claimant was upset with a co-worker and not his assembly line leader. This further aggravated Claimant. After five minutes, Claimant was still upset, prompting Rivera to deliver an ultimatum to Claimant: he could take five more minutes to calm down or he could clock out and go home for the day. Claimant chose to clock out. As Claimant was leaving the building, he put up his middle finger and exclaimed "F**k it!" He testified that he did not direct these words and gesture to anyone in particular. Shawnda Nowakowski, Employer's Human Resources Director, later phoned Claimant to inform him that he had been discharged.
Claimant offered into evidence Employer's employee handbook, which contains a progressive discipline policy. The policy outlines three groups of rules and accompanying disciplinary actions; Group I violations are the least serious and Group III violations are the most serious. A Group III violation, such as "[i]nsubordination, including refusal or deliberate failure to carry out work assignment or to comply with the instructions of a supervisor," subjects an employee to immediate discharge. Certified Record, Item No. 8, Claimant's Exhibit 1 at 15 (C.R.___).
Claimant testified that he had previously received a written warning for absenteeism, which is a Group II violation. Another Group II violation is
[u]sing abusive, profane, immoral, obscene or threatening language, coercing or intimidation of another employee, a supervisor, a company official or facility visitor.Id. at 14. Because Claimant had already received a written warning for his first Group II violation, absenteeism, his second Group II violation would result in a suspension. Claimant testified that he should have been suspended, not terminated, for using profanity in the workplace.
Rivera and Nowakowski both testified and largely corroborated Claimant's account, with some exceptions. Rivera testified that several minutes after Claimant said "F**k it!" and threw up his middle finger, he returned to the building, informed Rivera that "You know it's not just me. It's that f**king fag as well," and left the building again. Notes of Testimony at 7 (N.T. ___). He also testified that Claimant directed his obscenity at Rivera. Nowakowski added that during her phone conversation with Claimant, she informed him that he had been terminated because his middle finger gesture was "pure insubordination." N.T. 6.
The Referee reversed the UC Service Center and granted benefits. The Referee found that Claimant's actions constituted a Group II violation that warranted suspension, not termination, under Employer's progressive discipline policy. The Referee rejected Nowakowski's insubordination claim. He found that Claimant had followed Rivera's orders by leaving and, thus, had not been insubordinate. The Referee held because Employer had failed to follow its own progressive discipline policy, Claimant was not ineligible by reason of willful misconduct.
Employer appealed to the Board, and it reversed. The Board found, as fact, that Claimant was discharged for insubordination and that he gave Rivera the middle finger. The Board determined that Rivera's directive to calm down or go home was reasonable and that Claimant failed to establish good cause for refusing to calm down. Accordingly, Claimant engaged in willful misconduct and was ineligible for benefits under Section 402(e) of the Law.
Claimant now petitions for this Court's review. Claimant makes several arguments that boil down to challenging the Board's determination that his behavior constituted insubordination. Claimant maintains that the Board erred in holding: (1) that Claimant's behavior constituted willful misconduct; (2) that Claimant's behavior was a Group III violation under Employer's progressive discipline policy; and (3) that Claimant's failure to calm down was the insubordinate act that caused Claimant to be terminated. Finally, Claimant argues that the Board capriciously disregarded evidence.
Our scope of review is limited to determining whether constitutional rights were violated, errors of law committed, or if the necessary findings of fact were supported by substantial evidence. Ductmate Industries, Inc. v. Unemployment Compensation Board of Review, 949 A.2d 338, 341 n.2 (Pa. Cmwlth. 2008). However, "[w]hether an employee's action constitutes willful misconduct is a question of law subject to judicial review." Conemaugh Memorial Medical Center v. Unemployment Compensation Board of Review, 814 A.2d 1286, 1288 (Pa. Cmwlth. 2003). --------
We begin with a review of the law on willful misconduct. Although not defined in the Law, the courts have established that it means the following:
(1) an act of wanton or willful disregard of the employer's interest;Altemus v. Unemployment Compensation Board of Review, 681 A.2d 866, 869 (Pa. Cmwlth. 1996). It is the employer's burden to establish that a claimant's conduct constituted willful misconduct. Id. An employer's progressive discipline policy defines willful misconduct. Brady v. Unemployment Compensation Board of Review, 544 A.2d 1085, 1086 (Pa. Cmwlth. 1988). An employee cannot be found to have committed willful misconduct where the employer's policy did not warn that such behavior could result in a dismissal. PMA Reinsurance Corporation v. Unemployment Compensation Board of Review, 558 A.2d 623, 626 (Pa. Cmwlth. 1989).
(2) a deliberate violation of the employer's rules;
(3) a disregard of standards of behavior which the employer has a right to expect of an employee; and
(4) negligence indicating an intentional disregard of the employer's interest or of the employee's duties and obligations to the employer.
Under Employer's progressive discipline policy, a Group III violation subjects an employee to immediate discharge. That policy defines insubordination, a Group III violation, as the "refusal or deliberate failure to . . . comply with the instructions of a supervisor." C.R., Item No. 8, Claimant's Exhibit 1 at 15. By contrast, the policy has classified "[u]sing abusive, profane . . . obscene or threatening language, coercing or intimidation of another employee, [or] a supervisor" as a Group II violation. Id. at 14. The first Group II violation subjects an employee to a written warning; the second Group II violation results in a suspension; and the third Group II violation results in a termination of employment. Id. Here, Claimant had received one Group II violation prior to his discharge.
In his first argument, Claimant argues that the Board erred in determining that Claimant's refusal to calm down was the insubordinate act that proximately caused Claimant to be terminated. We agree.
An employer is bound by the stated reasons for dismissal. It cannot later offer additional reasons for its dismissal when the stated reasons do not constitute willful misconduct. Browning-Ferris Industries of Pennsylvania, Inc. v. Unemployment Compensation Board of Review, 561 A.2d 856, 857 (Pa. Cmwlth. 1989). Similarly, the Board may not rely on reasons for discharge that were not relied on by the employer. Tundel v. Unemployment Compensation Board of Review, 404 A.2d 434, 435 (Pa. Cmwlth. 1979) (citing Unemployment Compensation Board of Review v. Kerstetter, 344 A.2d 743, 744 (Pa. Cmwlth. 1975)).
Here, the Board's determination that Claimant's failure to calm down was the reason he was fired lacks support in the record. Nowakowski testified at the hearing that she informed Claimant that his obscene gesture was "pure insubordination" and, thus, caused his discharge. N.T. 6. Additionally, in an e-mail attached to Employer's appeal to the Board, Nowakowski reiterated that
[t]he insubordinate act was not punching out and going home. The insubordinate act was on his way out, giving his supervisor the finger and saying "f*** it" on his way out of the building.C.R., Item No. 10, at 2. Simply, the record is bereft of evidence indicating that Claimant was fired because he failed to calm down. The evidence shows that Claimant was fired because of his use of profane language and a profane gesture.
* * *
Bryan did use abusive, profane language. Under our handbook, this is a Group II violation which would result in a suspension. But Bryan did not only use profanity, he gave his supervisor the middle finger.
Giving your supervisor the finger, is clearly insubordination and willful misconduct and deserves immediate termination.
Employer admits that Claimant's use of profane language qualifies as a Group II violation under the policy but argues that Claimant's use of an obscene gesture transformed the profanity into insubordination. Raising the middle finger gesture is a well-recognized profanity. Using the gesture while saying the word represented by that gesture is redundant. Employer's policy does not define insubordination as expressing profanity redundantly. Further, Claimant did not disobey Rivera's directive. When given the choice to calm down or go home, Claimant opted for the latter. This is not insubordination but, rather, following directions.
Claimant's use of profanity in the workplace was his second Group II violation, which subjected him to a suspension under Employer's progressive discipline policy. The policy did not notify Claimant that expressing profanity, in word and deed, would be considered insubordination or grounds for discharge. An employee cannot be denied unemployment compensation benefits where his discharge was contrary to the employer's own policy. PMA Reinsurance Corporation, 558 A.2d at 626. Because his discharge for profanity violated Employer's progressive discipline policy, Claimant cannot be denied benefits on grounds of willful misconduct.
Accordingly, we reverse the Board's order.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 5th day of January, 2012, the order of the Unemployment Compensation Board of Review, dated January 11, 2011, is hereby REVERSED.
/s/_________
MARY HANNAH LEAVITT, Judge