Opinion
No. 2259 C.D. 2013
06-03-2014
Ericka Baltimore, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Ericka Baltimore (Claimant), pro se, petitions this Court for review of an order of the Unemployment Compensation Board of Review (Board) holding that she was discharged for willful misconduct and was therefore ineligible to receive unemployment compensation benefits under Section 402(e) of the Unemployment Compensation Law. We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, § 402(e), as amended, 43 P.S. § 802(e). Section 402(e) provides that an employee 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 was discharged by Valenti Mid-Atlantic Management d/b/a Wendy's (Employer) on June 21, 2013 and filed for unemployment benefits. The Unemployment Compensation Service Center found Claimant ineligible under Section 402(e) and denied benefits. Claimant appealed and the referee conducted a hearing at which Claimant and four witnesses for Employer testified. After the hearing, the referee made the following findings of fact:
1. The claimant was last employed by Wendy's as a crewmember working part-time. She began working for this employer on August 3, 2009 and was earning $9.20 per hour with her last day being June 21, 2013.(Record Item (R. Item) 9, Referee Decision and Order, Findings of Fact (F.F.) ¶¶1-7; R. Item 11, Board Decision and Order.) The referee concluded that Claimant violated Employer's rule against rudeness, inappropriate treatment or unprofessional behavior and was discharged for willful misconduct. (R. Item 9, Referee Decision and Order at 2.)
2. The employer has a policy which provides for disciplinary action up to and including termination for rudeness, inappropriate treatment or unprofessional behavior towards guests, employees or management.
3. The claimant was aware of this policy having acknowledgment received by signature.
4. On May 9, 2013, the claimant was issued a written warning for sending harassing texts to fellow employees and for bringing a child into the restaurant after the dining room was closed.
5. On June 12, 2013, the claimant and another employee handed an employee an envelope to give to the coworker.
6. On the envelope within the envelope it was written, "ha ha ha Ugly B*tch" and the envelope contained a name tag that had Skunky written on it.
7. The claimant was discharged for harassing an employee.
Claimant appealed to the Board, and the Board affirmed. The Board adopted the referee's findings and conclusions and made the following additional statement and findings:
The Board credits the testimony of the employer's witnesses that the claimant handed the co-worker the envelope that was intended for the co-worker with whom the claimant had the dispute. The derogatory name on the nametag was the same one that the claimant used in her text messages. The claimant had already been warned about harassing the co-worker and should have been aware that her job was in jeopardy.(R. Item 11, Board Decision and Order.) Claimant timely filed a petition for review appealing the Board's order to this Court.
Our scope of review of the Board's decision is limited to determining whether errors of law were committed, constitutional rights or agency procedures were violated, and necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; Temple University v. Unemployment Compensation Board of Review, 772 A.2d 416, 418 n.1 (Pa. 2001).
In unemployment compensation cases, the burden of proving willful misconduct is on the employer. Caterpillar, Inc. v. Unemployment Compensation Board of Review, 703 A.2d 452, 456 (Pa. 1997); Walsh v. Unemployment Compensation Board of Review, 943 A.2d 363, 368 (Pa. Cmwlth. 2008). To prove willful misconduct, the employer must show: (1) wanton or willful disregard of the employer's interests, (2) deliberate violation of the employer's rules, (3) disregard of standards of behavior that an employer can rightfully expect from an employee, or (4) negligence that indicates an intentional disregard for the employer's interests or the employee's duties or obligations. Temple University v. Unemployment Compensation Board of Review, 772 A.2d 416, 418 (Pa. 2001); Caterpillar, Inc., 703 A.2d at 456.
A claimant's violation of a reasonable work rule or employer policy constitutes willful misconduct unless the application of the rule or policy to the claimant's conduct is unreasonable or the claimant shows good cause for her actions. Caterpillar, Inc., 703 A.2d at 456; Walsh, 943 A.2d at 369-70; Williams v. Unemployment Compensation Board of Review, 926 A.2d 568, 571-72 (Pa. Cmwlth. 2007). To prove willful misconduct on this basis, the employer must prove the existence of the rule or policy and that the claimant was aware of the rule or policy and violated it. Walsh, 943 A.2d at 369-70; Williams, 926 A.2d at 571; ATM Corp. of America v. Unemployment Compensation Board of Review, 892 A.2d 859, 865-66 (Pa. Cmwlth. 2006). If the employer makes that showing, the burden is on the claimant to demonstrate good cause for her conduct. Walsh, 943 A.2d at 369; ATM Corp. of America, 892 A.2d at 865. Whether a claimant's actions constitute willful misconduct is a question of law fully reviewable on appeal. Temple University 772 A.2d 416, 418 n.1; Caterpillar, Inc., 703 A.2d at 456; Walsh, 943 A.2d at 368.
Here, Claimant's actions in directing an anonymous, insulting envelope to her coworker after she had been warned to stop harassing that same coworker constituted willful misconduct. Employer proved both that it had a policy that prohibited "[r]udeness, inappropriate treatment or unprofessional behavior towards guests, employees or management" and made it a ground for termination, and that Claimant was aware of that policy. (R. Item 9, F.F. ¶¶2-3; R. Item 8, H.T. at 3-5; R. Item 3, Exhibits 9, 9A.) Employer also showed that Claimant violated that policy. Claimant had been previously warned for harassing text messages to a coworker that had resulted in the coworker complaining to Employer's Human Resources Department and calling the police to Employer's restaurant. (R. Item 9, F.F. ¶4; R. Item 11, Board Decision and Order; R. Item 8, H.T. at 5-7, 12-14, 16-19.) After that warning, Claimant gave an envelope with the unsigned message "ha ha ha Ugly B*tch" and the name tag "Skunky" to another worker at Employer's restaurant, with instructions for it to be delivered to the same coworker who had previously complained of harassment. (R. Item 9, F.F. ¶¶5-6; R. Item 11, Board Decision and Order; R. Item 8, H.T. at 3-11, 13-15; R. Item 3, Exhibit 8.) Violation of an employer policy against inappropriate language directed personally at a coworker constitutes willful misconduct. Compare Williams, 926 A.2d at 571-72 (claimant's use, in violation of employer policy concerning workplace language, of the term "zebra" to refer to people of mixed race around coworkers with biracial children was willful misconduct) with Caterpillar, Inc., 703 A.2d at 457-58 (employer rule against t-shirts that "attack or insult individual persons" did not make t-shirts that referenced a slogan concerning employer's Chief Executive Officer willful misconduct where the t-shirts did not contain any "offensive, vulgar, or threatening" language and did not "personally criticize or attack" him).
No good cause for Claimant's conduct was shown. While Claimant contended that the hostile texting had been started by the coworker and that the coworker had made insulting comments about Claimant and Claimant's children in those exchanges (R. Item 8, H.T. at 16, 18), Claimant asserted that the texting had stopped well before the incident at issue. (R. Item 9, F.F. ¶¶4-5 and Referee Decision and Order at 2; R. Item 8, H.T. at 16, 18.) There was no evidence that the coworker did or said anything after Claimant received the warning that could constitute provocation or justification for Claimant's anonymous profanity-laced insult several weeks later.
Both of these accusations were denied by the coworker, who testified that Claimant not only called her "Skunky," but also threatened her in the texts. (R. Item 8, H.T. at 12-14, 17-18.) The referee and Board made no findings as to who was initiator of the hostile language in the texting or whether the coworker insulted Claimant or her children. --------
Claimant argues that she did not direct the insulting message and name tag at the coworker. This argument fails because it is contrary to the Board's factual findings. The Board is the ultimate fact finder, and its credibility determinations and findings of fact are binding on this Court where they are supported by substantial evidence, even if there is other contrary evidence. Bruce v. Unemployment Compensation Board of Review, 2 A.3d 667, 671-72 (Pa. Cmwlth. 2010); Ductmate Industries, Inc. v. Unemployment Compensation Board of Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008). The Board's findings here are supported by substantial evidence. Employer introduced testimony from the employee on duty at the time of the incident, who testified that Claimant gave her the envelope, asked her to pass it on to the coworker's supervisor so the coworker would receive it, and asked her to lie and say that it was from a customer. (R. Item 8, H.T. at 10-11.) The Board specifically found that testimony credible and rejected Claimant's denial. (R. Item 11, Board Order.) Moreover, at the hearing Claimant did not dispute her active involvement in directing the insult at the coworker. Although she contended that she did not herself hand the envelope to the worker on duty or write the insulting message or name tag, she admitted that she participated in the incident and knowingly accompanied the person who handed over the envelope, characterizing the incident as "fun and games" and "jokes." (R. Item 8, H.T. at 15, 17.)
Because the Board did not err in finding that Claimant committed willful misconduct, we affirm the order of the Board.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 3rd day of June, 2014, the order of the Unemployment Compensation Board of Review in this matter is hereby AFFIRMED.
/s/_________
JAMES GARDNER COLINS, Senior Judge