Opinion
No. 2373 C.D. 2014
07-10-2015
Benjamin J. Everhart, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Benjamin J. Everhart (Claimant) petitions for review, pro se, of the November 7, 2014, order of the Unemployment Compensation Board of Review (UCBR), affirming the decision of a referee to deny Claimant's application for unemployment compensation (UC) benefits under section 402(e) of the Unemployment Compensation Law (Law). 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 UC benefits for any week "[i]n which his unemployment is due to his discharge . . . from work for willful misconduct connected with his work." 43 P.S. §802(e).
Claimant worked as a full-time tow truck driver for Walks Service Center, Inc. (Employer) from July 2, 2013, through July 29, 2014. (Findings of Fact, No. 1.) In February 2014, Employer suspended Claimant from work due to altercations and other problems with co-workers. (Id., No. 2.)
On July 30, 2014, in front of Employer's general manager (GM), a dispatcher told Claimant that he needed to cover for another employee and to check in a truck because he was going to be towing. Claimant told Employer's GM and the dispatcher that he should have "tried to f--king call in Chuck or Brandon." (Findings of Fact, No. 5; N.T. at 9.) Claimant further stated that he should have stayed home and then stormed off. (Findings of Fact, Nos. 4-5.) Thereafter, the GM went to the back parking lot to check in a truck and had another altercation with Claimant, who was also in the back parking lot talking to another employee. Claimant ultimately yelled, "I don't f--king care" at the GM in front of Employer's customers. (Id., Nos. 6-8.) Employer discharged Claimant due to disruptive behavior and failure to follow instructions. (Id., No. 9.)
Checking in a truck involves getting a truck ready for towing, i.e., making sure that all the equipment is present that is necessary to perform the job. (N.T. at 7.)
Claimant applied for UC benefits with the local service center. The service center granted Claimant UC benefits, and Employer appealed to a referee, who conducted a hearing. The referee reversed the service center, denying Claimant UC benefits. Claimant appealed to the UCBR, which resolved all conflicts in the testimony in favor of Employer, found Employer's witness credible, and affirmed the referee's decision. Thereafter, Claimant petitioned this court for review.
Our 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.
Claimant contends that the UCBR erred in determining that Employer proved willful misconduct. We disagree.
Claimant also contends that Employer did not provide documentation of previous acts that ultimately resulted in Employer's decision to terminate Claimant. We note that the GM's testimony was sufficient to support the UCBR's findings; thus, documentary evidence of prior incidents or of Claimant's work history was unnecessary. See Haines v. Unemployment Compensation Board of Review, 446 A.2d 985, 986 (Pa. Cmwlth. 1981) (finding that the supervisor's testimony alone supported the referee's findings).
"Willful misconduct" is defined as: (1) a wanton and willful disregard of the employer's interests; (2) a deliberate violation of the employer's rules; (3) a disregard of the standards of behavior that an employer rightfully can expect from its employees; or (4) negligence that manifests culpability, wrongful intent, evil design, or an intentional and substantial disregard of the employer's interests or the employee's duties and obligations. Oliver v. Unemployment Compensation Board of Review, 5 A.3d 432, 438 (Pa. Cmwlth. 2010) (en banc). An employee's failure to comply with an employer's directive can amount to willful misconduct. Klapec Trucking Company v. Unemployment Compensation Board of Review, 503 A.2d 1122, 1124 (Pa. Cmwlth. 1986). The employer has the burden of proving that the employee committed willful misconduct. Id. Once the employer meets its burden, the burden shifts to the employee to show good cause for not complying with the employer's directive. Id.
In UC cases, "the UCBR is the ultimate fact finder and is empowered to make credibility determinations." Bell v. Unemployment Compensation Board of Review, 921 A.2d 23, 26 n.4 (Pa. Cmwlth. 2007). "Questions of credibility and the resolution of evidentiary conflicts are within the [UCBR's] discretion" and may not be re-evaluated by this court. Id. In reviewing the record to determine whether it contains substantial evidence to support the UCBR's findings, we must view the record in the light most favorable to the prevailing party and give that party the benefit of all logical and reasonable inferences deducible therefrom. Stringent v. Unemployment Compensation Board of Review, 703 A.2d 1084, 1087 (Pa. Cmwlth. 1997).
This court must evaluate the reasonableness of the employer's directive and the employee's reason for not complying. Klapec, 503 A.2d at 1124. "If the employee's behavior was justified or reasonable under the circumstances, it cannot be considered to have been willful misconduct." Id. A claimant's refusal to perform usual job functions constitutes willful misconduct. Wiezer v. Unemployment Compensation Board of Review, 462 A.2d 350, 352 (Pa. Cmwlth. 1983).
Applying these standards, we conclude that the credible testimony of Employer's GM constitutes substantial evidence to support the UCBR's findings. Having found that Claimant disregarded the directive of Employer's GM and dispatcher to check in a tow truck and, further, that Claimant swore at them in front of Employer's customers, the UCBR properly concluded that Claimant is ineligible for benefits under section 402(e) of the Law.
The UCBR discredited Claimant's testimony that Claimant checked in the truck and that it was the GM, not Claimant, who swore in front of the customers. (UCBR Decision, 11/7/14, at 2.)
Claimant does not contend that he had good cause for his actions. --------
Accordingly, we affirm.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 10th day of July, 2015, we hereby affirm the November 7, 2014, order of the Unemployment Compensation Board of Review.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge