Opinion
No. 1482 C.D. 2011
07-20-2012
Gene Brumbach, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Gene Brumbach (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board). The Board reversed the decision of a Referee, thereby denying Claimant benefits pursuant to Section 402(e) 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).
Claimant applied for unemployment compensation benefits subsequent to his employment termination from Edens Corporation (Employer). The Philadelphia U.C. Service Center (Service Center) found Claimant ineligible for benefits because Claimant exhibited a willful disregard for Employer's interests and work directives, thereby constituting willful misconduct. (Certified Record (C.R.), Item No. 4.) Claimant appealed the Service Center's determination, and a hearing was held in front of a Referee.
At the hearing, Employer's witness and Project Manager, Mike LeDent, testified to the circumstances which led to Claimant's termination. Mr. LeDent testified that Claimant began working for Employer on May 19, 2009, and Claimant's employment was subsequently terminated on February 11, 2011. (C.R., Item No. 8 at 5.) Mr. LeDent acknowledged that Claimant was employed as a "floating supervisor," and, as part of that role, he was required to enforce Employer's rules. (Id. at 5, 9.) The last incident leading up to Claimant's employment termination involved an interaction with another employee, Marianne Lemongelli. (Id. at 5.) According to Mr. LeDent, Claimant "lost control in the office" in an attempt to reprimand Ms. Lemongelli for her lateness upon her return from her lunch break. (Id. at 5-6, 14.) Mr. LeDent testified that Claimant, on numerous occasions, had loud outbursts and overreactions that were inappropriate for a work environment. (Id. at 7.) Mr. LeDent noted that he counseled Claimant on several occasions as to how to appropriately and professionally enforce Employer's rules. (Id.) Mr. LeDent testified that Claimant's behavior completely disrupted the office and many employees and co-workers were afraid of him. (Id.) Mr. LeDent admitted to having a conversation with Claimant in which he informed Claimant that he wanted strict standards implemented for tardiness. (Id. at 15.) Further, Mr. LeDent confirmed that part of Claimant's job responsibilities included reprimanding employees for failure to follow work rules, but emphatically noted that Claimant failed to enforce this responsibility professionally and correctly. (Id. at 10, 19.) Finally, Mr. LeDent testified that he would consider recommending Claimant for other employment, so long as that employment did not involve managing other employees.
We note that Employer's second witness and Manager, Angela Graham, also testified at the hearing. Ms. Graham testified that she heard Claimant yelling at Ms. Lemongelli. (C.R., Item No. 8 at 20.) Further, Ms. Graham also testified that Claimant told her that if the tardy employee "could [not] get it together then she should just go home." (Id. at 23.)
Claimant also testified at the hearing as to the incident which led to his employment termination. Claimant testified that he sent Ms. Lemongelli to lunch at 2:45p.m. and expected her to return at 3:15p.m. (Id. at 29-30.) When Ms. Lemongelli returned from lunch at 3:25p.m., Claimant testified that he questioned her as to her whereabouts. (Id.) In response, Claimant stated that Ms. Lemongelli told him that her lunch break began at 3:00p.m., as opposed to 2:45p.m., but Claimant denied this as being accurate. (Id. at 30.) And although Claimant confirmed that Ms. Lemongelli stated, "do [not] talk to me that way," Claimant testified that he did not yell at Ms. Lemongelli, so he was unsure of the meaning of her statement. (Id.) Claimant testified that he planned on writing up Ms. Lemongelli for her tardiness. (Id. at 31.)
Subsequent to the hearing, the Referee granted Claimant unemployment compensation benefits. (C.R., Item No. 9.) The Referee found the testimony of Mr. LeDent and Ms. Graham credible regarding the events leading to Claimant's discharge. (Id.) The Referee acknowledged that Claimant inappropriately yelled at Ms. Lemongelli upon her return from lunch. (Id.) However, the Referee noted Mr. LeDent's statement in which he indicated that he would recommend Claimant for another job, so long as that employment did not involve supervising other employees. (Id.) The Referee concluded that, based on Mr. LeDent's statement, Claimant's discharge resulted from poor work performance as opposed to willful misconduct. (Id.)
Employer appealed the Referee's decision to the Board. The Board issued its own findings of facts which included the following:
Claimant alleges that the Board considered ex parte statements that were attached to Employer's appeal. There is, however, no evidence that the Board considered written statements attached to Employer's appeal in making its decision.
1. The claimant was last employed as a floating supervisor by Edens Corporation from May 19, 2009, at a final rate of $17.33 per hour and his last day of work was February 11, 2011.(C.R., Item No. 14.) The Board reversed the Referee's decision and concluded that Claimant's conduct rose to the level of willful misconduct. (Id.) The Board reasoned that Claimant received several warnings about his behavior toward other employees, and, despite those warnings, Claimant continued to act inappropriately. (Id.) Claimant's behavior, therefore, constituted willful misconduct. On appeal, Claimant argues that the Board's decision is not supported by substantial evidence and that the Board erred as a matter of law in concluding that Claimant's conduct constituted willful misconduct. We initially note that Claimant does not identify with specificity the Board's findings of fact that he challenges. In his brief, however, Claimant suggests that none of the Board's findings of fact are supported by substantial evidence. (Claimant's Brief at 9.) We, therefore, will interpret Claimant's argument as whether the Board's findings of fact numbers one (1) through five (5) are supported by substantial evidence.
2. The employer reprimanded the claimant on numerous occasions for yelling at employees.
3. On February 4, 2011, the claimant yelled at another employee for not coming back to work from her lunch break on time.
4. The employer suspended the claimant for yelling at an employee on February 4, 2011.
5. The employer discharged the claimant for the yelling incident.
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.
Additionally, in Claimant's petition for review, Claimant suggests that hearsay statements were improperly permitted into evidence. Claimant, however, failed to include this issue in the statement of questions presented and failed to brief this issue. The issue, therefore, is waived. Pa. R.A.P. 2116; Van Duser v. Unemployment Comp. Bd. of Review, 642 A.2d 544 (Pa. Cmwlth. 1994); Coraluzzi v. Cmwlth., 524 A.2d 540 (Pa. Cmwlth. 1987).
Substantial evidence is defined as relevant evidence upon which a reasonable mind could base a conclusion. Johnson v. Unemployment Comp. Bd. of Review, 502 A.2d 738, 740 (Pa. Cmwlth. 1986). In determining whether there is substantial evidence to support the Board's findings, this Court must examine the testimony in the light most favorable to the prevailing party, giving that party the benefit of any inferences that can logically and reasonably be drawn from the evidence. Id. A determination as to whether substantial evidence exists to support a finding of fact can only be made upon examination of the record as a whole. Taylor v. Unemployment Comp. Bd. of Review, 474 Pa. 351, 355, 378 A.2d 829, 831 (1977). The Board's findings of fact are conclusive on appeal only so long as the record taken as a whole contains substantial evidence to support them. Penflex, Inc. v. Bryson, 506 Pa. 274, 286, 485 A.2d 359, 365 (1984). Further, in an unemployment case, it is well settled that the Board is the ultimate fact finder and is, therefore, entitled to make its own determinations as to witness credibility and evidentiary weight. Curran v. Unemployment Comp. Bd. of Review, 752 A.2d 938, 940 (Pa. Cmwlth. 2000) (citing Peak v. Unemployment Comp. Bd. of Review, 509 Pa. 267, 270, 501 A.2d 1383, 1386 (1985)). The Board is also empowered to resolve conflicts in evidence. DeRiggi v. Unemployment Comp. Bd. of Review, 856 A.2d 253, 255 (Pa. Cmwlth. 2004).
Here, there is substantial evidence in the record to support all of the Board's findings. Claimant and Employer's witness, Mr. LeDent, testified that Claimant was hired on May 19, 2009 at a rate of $17.33 per hour and was subsequently discharged on February 11, 2011. (C.R., Item No. 8 at 5.) There is substantial evidence, therefore, to support the Board's finding of fact number 1. Second, Mr. LeDent testified that he warned Claimant on several occasions about his behavior and outbursts toward employees. (Id. at 7.) Claimant confirmed at least one meeting in which Mr. LeDent and Claimant discussed Claimant's tone and outbursts. (Id. at 39.) Therefore, the Board's finding of fact number 2 is supported by substantial evidence. Third, Mr. LeDent and Ms. Graham both testified that Claimant yelled at Ms. Lemongelli upon her return from lunch on February 4, 2011. (Id. at 5-6, 14, 20.) Ms. Graham specifically overheard Claimant yelling at Ms. Lemongelli. (Id. at 20.) While Claimant denies yelling at Ms. Lemongelli, the Board chose to find the testimony of Mr. LeDent and Ms. Graham credible, which is well within its discretion, Curran, 752 A.2d at 940, and, therefore, the Board's finding of fact number 3 is supported by substantial evidence. Fourth, Mr. LeDent testified that he suspended Claimant with pay pending an investigation on February 4, 2011. (C.R., Item No. 8 at 12.) Claimant reiterated Mr. LeDent's testimony regarding his suspension. (Id. at 32.) Therefore, there is substantial evidence to support the Board's finding of fact number 4. Finally, Mr. LeDent testified that Claimant's employment termination resulted from an outburst where he "lost control in the office." (Id. at 5-6, 14.) While Claimant denies this charge, as previously addressed, the Board chose to find Mr. LeDent and Ms. Graham's testimony credible, which is well within its discretion. Curran, 752 A.2d at 940. Therefore, the Board's finding of fact number 5 is supported by substantial evidence. Accordingly, there is substantial evidence in the record to support the Board's findings.
We next address Claimant's argument that the Board committed an error of law when it concluded that Claimant's actions constituted willful misconduct, as opposed to poor work performance. Section 402(e) of the Law provides, in 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:
Mere incompetence, inexperience, or inability to perform a job generally will not result in willful misconduct. Scott v. Unemployment Comp. Bd. of Review, 36 A.3d 643, 647-48 (Pa. Cmwlth. 2012) (citing Herndon v. Unemployment Comp. Bd. of Review, 540 A.2d 633 (Pa. Cmwlth. 1988); Culbreath v. Unemployment Comp. Bd. of Review, 426 A.2d 1267 (Pa. Cmwlth. 1981)). Failure to work up to proven ability despite warnings of poor work performance, however, can constitute willful misconduct. Scott, 36 A.3d at 648. Here, there is no evidence that Claimant was incompetent, inexperienced, or could not perform his job duties. In fact, Employer's witness, Mr. LeDent, testified that Claimant was generally a good employee. (C.R., Item No. 8 at 16.) Despite this, Claimant was informed that his loud outbursts were unacceptable and, as a result of the last incident with Ms. Lemongelli, Claimant was terminated. (Id. at 14.) Therefore, even if we consider Claimant's conduct as poor work performance, this conduct rose to willful misconduct when he failed to work to his proven ability despite the repeated warnings about his behavior.
(a) wanton or willful disregard for an employer's interests, (b) deliberate violation of an employer's rules, (c) disregard for 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 or obligations.Grieb v. Unemployment Comp. Bd. of Review, 573 Pa. 594, 600, 827 A.2d 422, 425 (2003). An employer seeking to prove willful misconduct by showing that the claimant violated the employer's rules or policies, must prove the existence of the rule or policy and that the claimant violated it. Walsh, 943 A.2d at 369. Once an employer has met its burden, however, 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) (citing Mulqueen v. Unemployment Comp. Bd. of Review, 543 A.2d 1286 (Pa. Cmwlth. 1988)).
Employment termination based on a violation of an employer's work directive constitutes a violation of employer's rules. See generally Graham v. Unemployment Comp. Bd. of Review, 840 A.2d 1054 (Pa. Cmwlth. 2004) (stating principle that failure to follow employer's verbal directive constitutes willful misconduct). Only where an employer's directive threatens the health and safety of a claimant will a court refuse to find willful misconduct. McLean v. Unemployment Comp. Bd. of Review, 476 Pa. 617, 383 A.2d 533 (1978). Furthermore, verbal and physical fighting rises to the level of willful misconduct because it constitutes a disregard of standards of behavior which an employer has the right to expect from employees. Jones v. Unemployment Comp. Bd. of Review, 460 A.2d 412, 414 (Pa. Cmwlth. 1983) (citing Kilapatrick v. Unemployment Comp. Bd. of Review, 429 A.2d 133 (Pa. Cmwlth. 1981); Unemployment Comp Bd. of Review v. Vojtas, 351 A.2d 700 (Pa. Cmwlth. 1976)).
Here, Employer established that Claimant's conduct constituted willful misconduct. Employer's witness, Mr. LeDent, credibly established that he warned Claimant about his tone toward employees on several occasions. (C.R., Item No. 8 at 7.) Despite these repeated warnings, Claimant yelled at Ms. Lemongelli for her tardiness, which is evidenced by Mr. LeDent and Ms. Graham's credible testimony. While Claimant disputes the fact that he yelled at Ms. Lemongelli, the Board chose to believe Employer and the Board is entitled to resolve any conflicts in evidence. Curran, 752 A.2d at 940. Claimant's employment termination occurred subsequent to the yelling incident and investigation, supporting Employer's contention that Claimant's termination resulted from inappropriate behavior toward employees. Claimant failed to follow Employer's verbal work directive when he did not alter his behavior subsequent to notification of his improper tone with employees. There is no evidence that Claimant's failure to follow Employer's directive would threaten his health or safety. Further, verbal fighting constitutes willful misconduct as a disregard for the standards of behavior which an employer can expect. Claimant's conduct, therefore, of yelling at a tardy employee, constitutes willful misconduct, and Claimant failed to establish a good cause justification for his conduct.
Claimant also attempts to argue that his employment termination resulted from nepotism and that he is entitled to benefits based on a claim of disparate treatment. A claimant can allege an affirmative defense of disparate treatment if she can establish that: (1) the employer discharged claimant but did not discharge other employees who engaged in similar conduct; (2) the claimant was similarly situated to those who were not discharged; and (3) the employer discharged claimant based on improper criterion. Geisinger Health Plan v. Unemployment Comp. Bd. of Review, 964 A.2d 970, 974 (Pa. Cmwlth. 2009). Employer has a contract with SEPTA, in which Employer provides SEPTA with ticket window services. (C.R., Item No. 8 at 8.) Ms. Lemongelli is the daughter of James Lemongelli, the senior contract manager with SEPTA. (Id. at 12.) Claimant alleges that his discharge resulted from his conversation with Ms. Lemongelli and, further, that she received preferential treatment based on her father's position with SEPTA. There is no evidence, beyond Claimant's testimony, that Employer discharged Claimant based on Ms. Lemongelli's familial situation. Further, Claimant failed to prove disparate treatment. Claimant failed to present other employees who engaged in similar conduct, but were not discharged. Moreover, Claimant did not offer evidence that other employees were similarly situated to himself.
Accordingly, because the Board's findings are supported by substantial evidence and the Board did not commit an error of law, we affirm the order of the Board.
/s/_________
P. KEVIN BROBSON, Judge
ORDER
AND NOW, this 20th day of July, 2012, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
DISSENTING OPINION BY SENIOR JUDGE FRIEDMAN
I respectfully dissent. Because I would conclude that Edens Corporation (Employer) did not terminate Gene Brumbach (Claimant) for willful misconduct, but rather for poor work performance, I would reverse the order of the Unemployment Compensation Board of Review (UCBR) and affirm the referee's decision to award Claimant benefits.
The majority concludes that Claimant demonstrated a willful disregard of Employer's interests and a disregard for the standards of behavior that Employer expected of its employees. Based on the testimony of Employer's own witness, which was credited by the UCBR, I cannot agree.
Employer's project manager, Mike LeDent, testified that, in reprimanding employees for tardiness, Claimant was acting in the best interest of Employer. (N.T., 4/4/11, at 10.) LeDent testified that "there's no doubt that [Claimant] was trying to enforce the policy of the company[,] but . . . the approach and the manner that it was done . . . [h]e consistently didn't do it well." (Id. at 45.) In fact, LeDent testified that he would recommend Claimant for another job, as long as the job did not involve supervising others. (Id. at 16.) According to LeDent, "[Claimant] was a good employee. [He] did what we asked him to do, except for dealing with people." (Id.) This evidence goes directly against a finding that Claimant intentionally disregarded Employer's interests.
I also note that, after Claimant was discharged, Employer added five hours of pay to Claimant's final paycheck. (N.T., 4/4/11, at 34-35.) --------
According to Claimant, he took his responsibilities as a supervisor seriously and never received a written warning about his conduct before his employment termination. (Addendum to Pet. for Appeal at 4.) At the hearing, Claimant testified that, when he assumed the supervisor position, Employer informed him that it wanted stricter enforcement of its absentee and lateness policies because the prior supervisor was too lenient. (N.T., 4/4/11, at 36.) LeDent admitted to having this conversation with Claimant. (Id. at 15.) Regarding the incident that led to his employment termination, Claimant testified that he believed he was just doing his job in reprimanding an employee for returning late from her lunch break. (Id. at 31.)
In my view, this case is similar to Macro Enterprises v. Unemployment Compensation Board of Review, 449 A.2d 788 (Pa. Cmwlth. 1982), in which our court affirmed the UCBR's award of benefits to a discharged claimant. In Macro Enterprises, the claimant was a supervisor who "had difficulties in supervision, insulted customers, caused loss of business and had problems with women employees." Id. at 788-89. The UCBR found that, although the claimant had difficulty getting along with fellow employees and customers due to "his aggressive personality," he had performed his job to the best of his ability. Id. at 789. This finding was based in part on the claimant's testimony that he was hired to replace an ineffective manager and that he believed that his managerial style was necessary to improve the work environment. Id. at 789 n.5. On appeal, we concluded that, although the claimant was "incapable of meeting his employer's standards because of his personality," the employer failed to prove that the claimant's lack of success on the job was the result of a deliberate disregard of the employer's interests. Id. at 789. Therefore, we upheld the award of benefits.
Like the claimant in Macro Enterprises, Claimant here was a supervisor who had difficulties interacting with and disciplining his subordinates due to his aggressive personality. He also believed that he was acting in Employer's best interest in enforcing its policies in a strict manner, particularly after Employer had told him that the prior supervisor was too lenient. Furthermore, LeDent admitted that Claimant was looking out for Employer's interests in enforcing its tardiness policy, although LeDent disapproved of the manner in which it was done. Under these circumstances, I would conclude that Employer failed to prove that Claimant's discharge was the result of a deliberate or wanton disregard of Employer's interests.
It is true that an employee's failure to work to his or her proven ability can rise to the level of willful misconduct. See Scott v. Unemployment Compensation Board of Review, 36 A.3d 643, 648 (Pa. Cmwlth. 2012). As the referee correctly found, however, Claimant never demonstrated an ability to perform supervisory duties well, a fact that Employer's witness did not dispute. (See Referee's Findings of Fact, No. 4.)
The record in this case reveals that Claimant was not well suited to being a supervisor and that Employer was justified in terminating his employment due to his poor supervisory skills. However, I do not find substantial evidence in the record to prove that Claimant's actions rose to the level of willful misconduct, thereby disqualifying him from receiving unemployment benefits. For these reasons, I would reverse.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge