Opinion
No. 545 C.D. 2012
12-05-2012
Bruce E. Brown, 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 BROBSON
Petitioner Bruce Brown (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board). The Board affirmed an order of an Unemployment Compensation Referee (Referee), denying Claimant unemployment compensation benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law). For the reasons set forth below, 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). Section 402(e) of the Law provides, in pertinent part, 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." The employer bears the burden of proving that the claimant's unemployment is due to the claimant's willful misconduct. Walsh v. Unemployment Comp. Bd. of Review, 943 A.2d 363, 369 (Pa. Cmwlth. 2008). The term "willful misconduct" is not defined by statute. The courts, however, have defined "willful misconduct" as:
(a) wanton or willful disregard of employer's interests, (b) deliberate violation of the employer's rules, (c) disregard of standards of behavior which an employer can rightfully expect of an employee, or (d) negligence indicating an intentional disregard of the employer's interest or an employee's duties and obligations.
Claimant applied for unemployment compensation benefits after he was discharged from his position as a Transportation Operator A (TEOA) with the Pennsylvania Department of Transportation (Employer). The Lancaster UC Service Center (Service Center) found Claimant ineligible for benefits under Section 402(e) of the Law. (Certified Record (C.R.), Item No. 4.) Claimant appealed the Service Center's decision, and a Referee conducted hearings on November 14, 2011, and December 14, 2011. Following the hearings, the Referee issued an order, in which she affirmed the Service Center's decision. (C.R., Item No. 18.) The Referee made the following findings of fact:
1. The claimant was employed from December 19, 2007, until July 22, 2011, at PennDot as a full-time [TEOA], earning $17.02 per hour.
2. The employer has a workplace violence policy, of which the claimant was aware, which establishes that the Commonwealth has a zero tolerance policy for any incidents of workplace violence, including threats of violence by or against its employees.
3. Under the policy, the use of violence or threats of violence by state employees, either while on duty, as a
result of performing their duty, or in a Commonwealth workplace is prohibited.
4. Violations of the Commonwealth Workplace Violence policy may lead to disciplinary action up to and including termination of employment.
5. PennDot has working rules in which a minor violation of safety rules, including unsafe acts while operating department equipment will result in either verbal or written warnings being entered into the employee's record as well as a suspension or more stringent disciplinary action if they continue after verbal and written warnings. Depending on the circumstances, a suspension or more stringent action may be taken even for the first offense.
6. PennDot has defined major rule violations as any violation of department safety rules of such a degree that continued employment of the individual may not be desired. Under the policy, any act which might endanger the safety or lives of others may subject an employee to immediate suspension or discharge without warning.
7. An employee who commits an unsafe act will be subject to an oral warning, a written warning and a 1-day or 3-day suspension before discharge occurs.
8. PennDot has a Handbook For Flaggers in which employees are made aware that flaggers must be standing and alert when facing approaching traffic. Flaggers must stand in a highly visible location. Flaggers must be located in such a position that they can be seen by traffic so drivers can react safely to their instructions. Flaggers must be ready to respond to all emergencies or errant vehicles.
9. The claimant was aware of the policies for the flaggers and he performed duties as a flagger on a regular basis.
10. On February 20, 2009, the claimant received an oral reprimand for an unsafe act.
11. On March 10, 2010, the claimant received a written reprimand for an unsafe act.
12. On February 4, 2011, the claimant received a 1-day suspension for an unsafe act.
13. At each level of discipline, the claimant was made aware that any future incidents of this nature [would] result in further discipline up to and including discharge.
14. On July 21, 2011, while the claimant was working as a flagger at the front of a moving operation, he walked 10 feet into an adjacent field to take a picture with his cell phone of a calf being born.
15. On July 21, 2011, Kevin Singles (Singles) was working on the claimant's crew running a piece of equipment called a Road Grader.
16. Singles honked his horn at the claimant because the claimant was not moving forward fast enough. The flag person in the front has to stay ahead so the operation can move.
17. On July 21, 2011, during the crew's lunch break, the claimant asked Singles why he blew the horn at him. Singles replied that he had done so because the claimant was not moving around fast enough.
18. The claimant argued that Singles was not his boss and that he could not tell him what to do.
19. The claimant told Singles, "Don't let my name come out of your mouth or I'll bash your f-cking head in!"
20. The claimant was visibly upset and angry when he made the threat to Singles.
21. When Singles asked the claimant if he was threatening him, the claimant replied that Singles "should take it any way he wants."
22. Singles reported the incident to his supervisor and an investigation into the incident was made.(C.R., Item No. 18.)
23. During the investigation, several witnesses corroborated the events of July 21, 2011.
24. The claimant admitted to both incidents.
25. On July 22, 2011, a pre-disciplinary conference (PDC) was held to discuss the claimant's actions on July 21, 2011.
26. On the same day, a PDC was also scheduled for a co-worker named Justin Hainley (Hainley), who was involved in an incident with another co-worker named Michael Swift (Swift), where it was alleged that Hainley brushed up against Swift during a verbal altercation on July 11, 2011, which resulted in inappropriate behavior charges against Hainley.
27. The witness statements in Hainley's case were inconsistent and the employer was unable to prove that Hainley had violated workplace violence policy.
28. Hainley had no prior related disciplinary actions against him for inappropriate behavior or for workplace violence prior to the incident of July 11, 2011.
29. As a result of a union grievance settlement, Hainley received a 6-day suspension with a final warning for the incident on July 11, 2011.
30. On July 22, 2011, after his PDC, the claimant was suspended pending investigation.
31. On August 8, 2011, the claimant was discharged for violating the employer's workplace violence policy, for committing an unsafe act, and for inappropriate behavior.
Based on the findings above, the Referee concluded that Claimant had engaged in willful misconduct for the two incidents that occurred on July 21, 2011. (Id. at 3-4.) Specifically, the Referee determined that Claimant committed an unsafe act in violation of Employer's policy for flaggers when Claimant walked away from the operations and took pictures of the calf being born. (Id. at 3.) The Referee reasoned that Claimant admitted that his conduct violated the Employer's policy for unsafe acts and Claimant had received three prior warnings for such acts. (Id.) Consequently, the Referee found that the unsafe act, in and of itself, constituted grounds for discharge under Section 402(e) of the Law, pertaining to willful misconduct. (Id.) Additionally, the Referee found that Claimant engaged in willful misconduct by violating Employer's workplace violence policy when Claimant threatened to bash a co-worker's "f-cking head in." (Id.) The Referee reasoned that co-workers frequently used the phrase "I'll kick your ass!" in the workplace, but that phrase was used in a joking manner, not as a real threat. (Id.) The Referee, however, credited witness testimony that Claimant was making a threat, not a joke, when he made the statement, and the Referee discredited Claimant's testimony to the contrary. (Id. at 4.) Furthermore, the Referee determined that Claimant did not establish good cause for his willful misconduct because he failed to show that Employer disparately treated Claimant. (Id.) Specifically, Claimant failed to show that Justin Hainley was similarly situated to Claimant, but was not terminated like Claimant. (Id.) The Referee, therefore, concluded that Claimant was ineligible for benefits under Section 402(e) of the Law.
We note that the Referee's order incorrectly references the incidents (Claimant taking a picture of a calf, and Claimant making a threat to a co-worker) as occurring on July 22, 2011. (C.R., Item No. 18 at 3.) It appears from the record that the Referee should have identified the date as July 21, 2011.
Claimant appealed the Referee's order to the Board, which affirmed the Referee's decision. In doing so, the Board adopted and incorporated the Referee's findings of fact and conclusions of law. Claimant now petitions this Court for review of the Board's order.
On appeal, Claimant argues that the Board erred in concluding that Claimant failed to establish good cause for his work rule violation. Claimant also argues that the Board erred in affirming the Referee's decision, because the Referee abused her discretion or violated Claimant's due process rights by prohibiting Claimant from developing testimony of the overall lack of enforcement of work rules by Employer.
This Court's standard of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.
We note that Claimant does not raise on appeal any issues relating to whether the Board erred in concluding that Employer did not engage in disparate treatment.
Claimant raises additional issues in his petition for review. Claimant, however, has failed to adequately brief those issues, and, therefore, those issues are waived. Pa. R.A.P. 2116; Imani Christian Acad. v. Unemployment Comp. Bd. of Review, 42 A.3d 1171, 1174 n.4 (Pa. Cmwlth. 2012). Moreover, Claimant has failed to preserve any challenges to the Board's findings of fact, and, therefore, they are binding on appeal. Steinberg Vision Assocs. v. Unemployment Comp. Bd. of Review, 624 A.2d 237, 239 (Pa. Cmwlth. 1993).
First, we will address Claimant's argument that the Board erred in concluding that Claimant failed to establish good cause for his work rule violation. Claimant contends that Employer condoned other flagrant work rule violations committed by other employees. We note that Claimant does not argue that he did not violate Employer's work rules. Rather, Claimant contends that work rule violations occurred regularly at his worksite, but that Employer "condoned" these rule violations. As a result, Claimant argues that Employer's condonation of violations of a multitude of work rules lulled Claimant into believing that his statement to his co-worker was not grounds for dismissal. Claimant contends that had he known that his statement was grounds for termination of his employment, he never would have said it. He argues, therefore, that Employer's condonation of work rule violations established good cause for his actions.
In his brief, Claimant relies on two cases, Bivins v. Unemployment Compensation Board of Review, 470 A.2d 662 (Pa. Cmwlth. 1984), and Tundel v. Unemployment Compensation Board of Review, 404 A.2d 434 (Pa. Cmwlth. 1979), for the theory that Employer "condoned" Claimant's conduct by routinely allowing rule violations. Those cases, however, are inapposite. As Claimant acknowledges in his brief, both Bivins and Tundel stand for the proposition that an act of willful misconduct cannot serve as the basis for denying unemployment benefits when the act is temporally remote from the time of discharge. Bivins, 470 A.2d at 664; Tundel, 404 A.2d at 436. Claimant does not argue in his brief that his willful misconduct was too remote in time to serve as the basis for denial of benefits; rather, Claimant argues that the concept of condonation should be extended to cover circumstances where there are on-going rule violations that, in essence, make the rules meaningless. As noted above, Claimant offers no legal support for the position that this Court should extend the concept of condonation, and we decline to do so under these circumstances.
We next consider Claimant's argument that the Referee abused her discretion or violated Claimant's due process rights by prohibiting Claimant from developing testimony of the overall lack of enforcement of work rules by Employer. As to this issue, Claimant's main contention appears to be that the Referee erred in denying Claimant's request for a subpoena to be issued to compel the testimony of Chad Coleman (Coleman), a co-worker.
We initially note that "[t]he essential elements of due process are notice and an opportunity to be heard in a full and fair hearing before an impartial decision maker." Leone v. Unemployment Comp. Bd. of Review, 885 A.2d 76, 80 (Pa. Cmwlth. 2005). Section 101.31 of the Pennsylvania Code, 34 Pa. Code § 101.31, governing the issuance of subpoenas by referees, provides, in pertinent part:
The issuance of subpoenas to compel the attendance of witnesses and the production of books, papers, correspondence, memoranda and other records and documents, may be obtained on application to the Board, referee, or at any local employment office.34 Pa. Code § 101.31. The issuance of a subpoena pursuant to 34 Pa. Code § 101.31 is a matter of discretion. Flores v. Unemployment Comp. Bd. of Review, 686 A.2d 66, 76 (Pa. Cmwlth. 1996). Nevertheless, the referee is not relieved "of [her] obligation to issue subpoenas in cases where the issuance of the subpoena would lead to relevant and probative testimony." Hamilton v. Unemployment Comp. Bd. of Review, 532 A.2d 535, 537 (Pa. Cmwlth. 1987). When the referee is able to make a determination that the proposed testimony would be unnecessary due to its lack of relevance, the referee has not erred in denying the subpoena request. Walsh v. Unemployment Comp. Bd. of Review, 943 A.2d 363, 371 (Pa. Cmwlth. 2008). A referee also may refuse to issue a subpoena where it is being requested for purposes of commencing a "fishing expedition." Zukowski v. Unemployment Comp. Bd. of Review, 525 A.2d 1279, 1280 (Pa. Cmwlth. 1987).
Here, Claimant argues that the Board erred in concluding that the Referee did not abuse her discretion or violate Claimant's due process rights when she denied Claimant's subpoena request for Coleman, because his testimony would have supported further Claimant's contention that Employer failed to enforce work rules, thereby creating a workplace that was a "free-for-all of rule violations." (Claimant's Br. at 8.) Claimant requested a subpoena in order to place into the record testimony about an alleged incident that occurred between Coleman and another co-worker in August 2011, following Claimant's termination of employment. On two separate occasions, Claimant's attorney cross-examined Employer's witness, Ashley Gaiski (Gaiski), Employer's District Labor Relations Coordinator, and on both occasions Gaiski testified that she found no record of any workplace violence altercation regarding Coleman and a supervisor. (C.R., Item No. 17 at 15; C.R., Item No. 15 at 111.) Additionally, Claimant called Scott Tanguy, a Senior Highway Maintenance Manager for Employer, as a witness to testify about Coleman. (C.R., Item 17 at 22.) Tanguy testified that he was responsible for oversight of disciplinary issues, but he had never heard of nor had any disciplinary issues involving Coleman. (Id. at 23-25.) Tanguy further testified that if there had been an incident involving Coleman, Tanguy would have record of it. (Id.) Moreover, Claimant admitted that the work-place incident involving Coleman may have been a false rumor. (C.R., Item No. 17 at 58)
Under these circumstances, we cannot conclude that the Referee abused her discretion or violated Claimant's due process when she failed to issue the subpoena for Coleman. First, Claimant's request for a subpoena appeared to be a "fishing expedition" regarding an unconfirmed rumor. Second, the relevance of an alleged incident that may have occurred following Claimant's termination would not appear relevant to Claimant's argument on appeal that, at the time Claimant made the statement in violation of the known work rule, he did not believe that the statement was grounds for dismissal because of other instances where Employer appeared to condone violations of work rules. Finally, because the Court rejected Claimant's request that we extend the concept of condonation, Claimant's line of inquiry is rendered even more irrelevant. We conclude, therefore, that the Board did not err in affirming the Referee's decision, despite the Referee's refusal to issue a subpoena for Coleman.
Again, we note that Claimant does not argue on appeal that Employer engaged in disparate treatment. Thus, whether Claimant was similarly situated with Coleman but received a different punishment for violation of the same work rule is not relevant to our inquiry as to whether the Referee erred in denying the request for a subpoena. --------
For the foregoing reasons, we affirm the Board's order.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 5th day of December, 2012, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge
Grieb v. Unemployment Comp. Bd. of Review, 573 Pa. 594, 600, 827 A.2d 422, 425 (2003). Once an employer has met its burden of showing willful misconduct, the burden then shifts to the claimant to show good cause as justification for the conduct considered willful. McKeesport Hosp. v. Unemployment Comp. Bd. of Review, 625 A.2d 112, 114 (Pa. Cmwlth. 1993).