Opinion
No. 977 C.D. 2013
12-12-2013
Brandon M. Zimmerman, 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 McCULLOUGH
Brandon M. Zimmerman (Claimant) petitions for review of the May 16, 2013 order of the Unemployment Compensation Board of Review (Board) affirming a referee's determination that Claimant is ineligible for benefits under section 402(e) of the Unemployment Compensation Law (Law). 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 provides that an employee shall be ineligible for compensation for any week in which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work.
Claimant was employed as a full-time restaurant manager by the Lehigh Valley Restaurant Group (Employer) from April 27, 2011, through February 5, 2013. In January 2013, Employer instituted a vehicle safety policy. Employer required all employees who travel on company business to sign the policy acknowledgement. Claimant expressed his concerns with aspects of the policy in which non-work-related traffic violations may result in disciplinary action taken by Employer. Employer addressed Claimant's concerns both verbally and by e-mail, assuring Claimant that non-work-related violations would have no disciplinary effect on his employment. However, Claimant still did not feel comfortable with the policy as written. During a meeting on February 5, 2013, Employer informed Claimant that he would be terminated if he failed to sign the policy. Claimant refused to sign and he was terminated that day. (Findings of Fact Nos. 1-8.)
Claimant applied for unemployment benefits, and the local service center determined on March 7, 2013, that he was ineligible for benefits under section 402(e) of the Law. Claimant appealed, and a referee held a hearing on April 5, 2013. Claimant testified that he was asked to sign Employer's vehicle safety policy in January, but he had some concerns regarding the policy. Specifically, Claimant stated that he objected to the policy language stating that he could be subject to discipline at work for conduct which occurred during his personal time over the past three years. Claimant indicated that he had a recent moving violation that he believed would be subject to consideration under this policy. At the time, Claimant had only worked for Employer for approximately eighteen months. (Reproduced Record (R.R.) at 26a-27a.)
Employer's policy stated that:
A driver will be classified as an ineligible driver and placed on probation, suspended, or terminated if one or more of the following violations or conditions exists:(R.R. at 46a.)
. . .
(vii) Any combination of three (3) moving violations, at-fault accidents, or preventable accidents within a three (3) year period.
Claimant requested further clarification from Sherry Ramsey, Employer's Benefits Manager. Additionally, Claimant discussed modifying the policy with Mike Axiotis, Employer's Vice President of Operations. Axiotis refused to modify the policy; however, Axiotis advised Claimant that the three-year look-back provision would not apply. Claimant stated that he refused to sign the policy as written. Claimant noted that he always followed Employer's directives and never had any discipline problems over the course of his employment with Employer. (R.R. at 27a-28a.)
On cross-examination, Claimant specified that the policy allows for discipline for any combination of three moving violations, at fault accidents, or preventable accidents within a three-year period. Claimant conceded that the policy allowed for probation as a consequence of its violation. Claimant also conceded that he never questioned whether Employer could discipline him for conduct which occurred prior to signing the policy, but that he relied on the language as stated in the policy. Claimant denied that Ramsey ever informed him that there would be no repercussions for pre-policy moving violations. However, Claimant later clarified that Axiotis did inform him that any pre-policy violations would not be considered and that is when Claimant asked that the policy be modified to reflect the same, but Axiotis refused. Claimant acknowledged that he never raised a concern with Employer over the policy requirement that he maintain $250,000 liability insurance coverage on his personal vehicle. (R.R. at 28a-33a.)
Upon further questioning by the referee, Claimant testified that he had only driven one time during work hours, to attend a mandatory meeting. Claimant noted that Ramsey was very vague in discussing the three-year provision in the policy, stating that while it was not the intention of the policy to look at any moving violations during this period, Employer certainly could under the policy. Claimant denied that he was offered the option to sign the document and note his disagreement with any part thereof. (R.R. at 33a.)
Ramsey testified that Claimant had been employed as a full-time store manager beginning on April 27, 2011, and that he was terminated on February 5, 2013, for refusing to sign Employer's Vehicle Safety Policy. Ramsey stated that the policy was implemented based on the recommendation of Employer's workers' compensation insurance carrier. Ramsey noted that store managers are required to drive on company time to attend meetings, to pick up product from another store, or to take an injured team member to the hospital. (R.R. at 10a-11a.)
Ramsey testified that she discussed the concerns Claimant had regarding the policy via phone and e-mail, namely the possibility of termination for conduct occurring during non-work-related travel. However, Ramsey stated that she informed Claimant that he would not be subject to discipline for non-work-related vehicle citations. Ramsey also stated that Claimant had concerns as to whether driving was part of his job description and that she explained it was. Additionally, Ramsey testified that Claimant would not be subject to discipline for any motor vehicle violations which occurred prior to the start of his employment with Employer. (R.R. at 12a-15a.)
On cross-examination, Ramsey acknowledged that the policy required Claimant to maintain $250,000 in liability insurance coverage on his personal vehicle. While Ramsey also conceded that driving is not part of the written job description for Claimant's position, she indicated that it was a requirement and that Claimant had, in fact, previously driven during the course of his employment to attend company meetings. On re-direct examination, Ramsey stated that Claimant never raised an objection regarding the personal liability insurance coverage. Ramsey also reiterated that she informed Claimant that any pre-policy violations would not be subject to disciplinary action. (R.R. at 16a-20a, 35a.)
Axiotis testified, first on cross-examination, that he met with Claimant and David Novich, Employer's Human Resources Director, to discuss Claimant's concerns regarding the policy. Axiotis and Novich detailed the reasons for the policy and noted that anybody who drove on company business was required to sign the policy. Axiotis stated that Claimant remained uncomfortable with the policy as written and refused to sign the acknowledgment, after which he and Novich made the decision to terminate Claimant. Axiotis explained that it was important for Claimant to acknowledge the policy so that everyone was held to the same standard. Axiotis testified that employees often refuse to sign disciplinary notices, but he noted that this was not such an action. Axiotis denied knowing that Employer could proceed with a background check of Claimant's driver's license without his permission. Additionally, Axiotis could not explain the $250,000 personal liability insurance coverage requirement in the policy. Further, Axiotis agreed with Ramsey that the written job description for Claimant's position did not include driving, but that it was an implied part of the position. (R.R. at 20a-22a.)
On direct examination, Axiotis testified that Claimant never raised a concern regarding the $250,000 personal liability insurance coverage requirement in the policy prior to his termination. Finally, upon questioning by the referee, Axiotis stated that he informed Claimant that the background checks of other employees revealed suspended licenses and other violations, but that none of these employees were terminated. (R.R. at 25a.)
By decision dated April 5, 2013, the referee affirmed the local service center's determination that Claimant was ineligible for benefits under section 402(e) of the Law. The referee concluded that the request of an employee to acknowledge an employer policy, with signature, is reasonable. While Claimant chose not to believe Ramsey or Axiotis that he would not be disciplined resulting from any prior traffic violations or any future non-work-related violations, the referee noted that Claimant failed to present any testimony or evidence to substantiate a reason for his disbelief. Thus, the referee concluded that Claimant had no good cause reason for refusing to comply with Employer's request to sign the policy. The referee characterized Claimant's actions as an act of insubordination that reflected a disregard of the standards of behavior that Employer could reasonable expect from its employees, thereby rendering Claimant ineligible for benefits.
Claimant appealed, but the Board affirmed the referee's decision, adopting and incorporating the referee's findings and conclusions. Although Claimant raised an issue on appeal regarding the provision in the policy requiring him to purchase $250,000 of personal liability insurance on his personal vehicle, the Board noted that the record establishes that Claimant never advised Employer that he was concerned with that provision. The Board further noted that Employer discussed with Claimant the concerns he voiced regarding the policy, namely prior traffic violations and future non-work-related violations.
On appeal to this Court, Claimant argues that the Board erred in concluding that his refusal to sign the policy constituted willful misconduct. More specifically, Claimant argues that the Board's findings that signing the policy was a reasonable request, and that he had no good cause reason for refusing to comply with Employer's request, are not supported by the record. We disagree.
Our scope of review in an unemployment compensation appeal is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704.
The Law does not define the term "willful misconduct," but our courts have defined it as including: the wanton or willful disregard of the employer's interests; the deliberate violation of the employer's rules; the disregard of standards of behavior that an employer can rightfully expect from an employee; or negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard of the employer's interests or the employee's duties and obligations. Webb v. Unemployment Compensation Board of Review, 670 A.2d 1212 (Pa. Cmwlth. 1996). Additionally, the employer bears the burden of proving that the employee's actions rose to the level of willful misconduct. Stauffer v. Unemployment Compensation Board of Review, 455 A.2d 300 (Pa. Cmwlth. 1983).
Whether a claimant has committed willful misconduct is a question of law, reviewable by this Court. Harris v. Unemployment Compensation Board of Review, 447 A.2d 1060 (Pa. Cmwlth. 1982).
We have previously held that an employee's refusal to comply with a reasonable request of his employer constitutes willful misconduct. Devine v. Unemployment Compensation Board of Review, 429 A.2d 1243 (Pa. Cmwlth. 1981). Indeed, in ATM Corporation of America v. Unemployment Compensation Board of Review, 892 A.2d 859 (Pa. Cmwlth. 2006), this Court held that a claimant's refusal to sign a form authorizing the employer to conduct a background check constituted insubordination which rose to the level of willful misconduct.
In ATM Corporation of America, the claimant was employed as an accounting clerk and she had access to confidential and sensitive client information and to Employer's multimillion dollar escrow account. The employer's clients and joint venture partners requested the background checks because of such access. This Court noted that even though the employer did not have a work rule stating that refusal to consent to a background check could result in a discharge, it did have a work rule stating that insubordination could result in a discharge and, further, that "[a]n employee's duty to cooperate can arise from an implied obligation to do so." Id. at 866.
To establish whether an employee's refusal rises to the level of willful misconduct, the reasonableness of the employer's demand and the reasonableness of the employee's refusal must be examined. Frumento v. Unemployment Compensation Board of Review, 466 Pa. 81, 351 A.2d 631 (1976); Semon v. Unemployment Compensation Board of Review, 417 A.2d 1343 (Pa. Cmwlth. 1980). If an employer's request is reasonably related to the employee's job duties, the employee's refusal to cooperate can be viewed as a disregard of standards of behavior expected of employees. Redano v. Unemployment Compensation Board of Review, 433 A.2d 151 (Pa. Cmwlth. 1981).
The burden of proving the reasonableness of the demand rests with the employer. LaGare v. Unemployment Compensation Board of Review, 498 Pa. 72, 444 A.2d 1151 (1982). Once the employer establishes the reasonableness of its directive, the burden shifts to the employee to show good cause for failure to follow the directive. LaGare. An employee can establish good cause by demonstrating that his refusal was a reasonable response. Devine.
In the present case, Ramsey, Employer's Benefits Manager, testified that it may be necessary for store managers to drive on company time in order to attend meetings, to pick up product from another store, or to take an injured team member to the hospital. (R.R. at 11a.) In fact, Claimant acknowledged that he had driven on at least one occasion to attend a mandatory meeting scheduled by Employer. (R.R. at 33a.) In conjunction with these job duties, Employer instituted a vehicle safety policy. The purpose of this policy was to:
protect all Team Members and business associates from serious injury, reduce automobile accidents and related injuries, reduce property damage and promote safety on the job and the highway by creating and maintaining a high level of safety awareness and fostering responsible driving behavior.(R.R. at 44a.) Employer required all employees who travel on company business to sign the policy acknowledgment. Axiotis, Employer's Vice President of Operations, testified that it was important for Claimant to sign the policy so that everyone was held to the same standard. Thus, the record supports the Board's finding that Employer's request for Claimant to sign the policy was reasonable.
In the course of this argument, Claimant questions why it was important to have him sign the policy, noting that employees often refuse to sign disciplinary notices and their refusal is simply noted therein. However, the present matter involved a work policy applicable to all employees who drive for Employer's business and simply cannot be compared to a disciplinary notice relative to a single employee.
The record also supports the Board's finding that Claimant's refusal to sign the policy was not reasonable. Claimant only raised a concern over the three- year look-back provision of the policy related to moving violations, at-fault accidents, and preventable accidents. However, Ramsey testified that she informed Claimant that any pre-policy violations would not be counted in enforcing this provision. (R.R. at 35a.) Additionally, Claimant conceded that Axiotis had also informed him that pre-policy violations would not be considered. (R.R. at 32a-33a.) Claimant testified that he simply did not believe Ramsey or Axiotis, (R.R. at 33a), but he offered no explanation, reasonable or otherwise, for this belief. Moreover, contrary to Claimant's assertion in his brief to this Court, Employer never indicated an intention not to enforce the policy, nor did Employer provide a verbal explanation that was inconsistent with the written policy. Rather, both Ramsey and Axiotis essentially advised Claimant that Employer had no intention of applying the policy retroactively. Thus, Claimant did not establish good cause for his refusal to sign the policy.
In his brief to this Court, Claimant raises additional issues regarding the policy's purported misstatement of the applicable law of respondeat superior and the requirement that he purchase certain levels of liability insurance on his personal vehicle. However, with respect to the latter issue, Claimant conceded that he never raised this issue with Employer when he refused to sign the policy. With respect to the former issue, Claimant did not raise this issue before the Board or in his petition for review. Hence, both issues are waived. See Jimoh v. Unemployment Compensation Board of Review, 902 A.2d 608 (Pa. Cmwlth. 2006) (issues argued in brief but not raised in petition for review are waived); Curry v. Unemployment Compensation Board of Review, 503 A.2d 1007 (Pa. Cmwlth. 1986) (issues not raised before the Board are waived). --------
Accordingly, the order of the Board is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 12th day of December, 2013, the order of the Unemployment Compensation Board of Review, dated May 16, 2013, is hereby affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge