Opinion
No. 1183 C.D. 2012
02-26-2013
Ronald C. Forrest, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Ronald C. Forrest (Claimant) petitions for review from the Order of the Unemployment Compensation Board of Review (Board) that affirmed the Decision and Order of the Unemployment Compensation Referee (Referee). The Referee determined that Claimant was ineligible for unemployment compensation (UC) benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law) because he engaged in willful misconduct by moving a train while its doors were open and by failing to inspect the train after it stopped again and its doors opened, contrary to the policies of the Southeastern Pennsylvania Transportation Authority (Employer). On appeal, Claimant argues that the evidence of record only shows negligence on his part, rather than an intentional and deliberate violation of Employer's policies. For the following reasons, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
Claimant began working for Employer as a train operator on February 19, 2001. Employer discharged him on December 1, 2011. Claimant applied for UC benefits, which the Philadelphia UC Service Center (Service Center) denied on January 16, 2012. Claimant appealed the Service Center's determination and the matter was assigned to a Referee for a hearing. The Referee held a hearing on February 16, 2012, after which the Referee made the following findings of fact:
2. The employer maintains policies which provide that the Train Operator is responsible for proper operation of the doors, safe operation, station stop procedures, door operation, notice to the dispatcher, and ground inspection.
3. Violation of the employer's policies may result in termination from employment.
4. The claimant was or should have been aware of all of the employer's policies.
5. The employer became aware of a complaint from a passenger who missed a train because the train left as he approached; the passenger reported that the doors were open but the train left.
6. The employer became aware that the claimant was operating the train.(Referee Decision, Findings of Fact (FOF) ¶¶ 2-14.) The Referee held that Claimant committed willful misconduct when he violated Employer's policy by failing to look out the train window, failing to make sure the doors were closed, and failing to inspect the train or call the dispatcher after the train stopped and the doors opened. The Referee did not credit Claimant's testimony that he was distracted or that the train was safe. (Referee Decision at 2.) Claimant appealed to the Board. Upon review, the Board noted that Claimant admitted that "he did not visually verify that the train doors were closed" before moving the train, which was a violation of Employer's safety procedures. (Board Order.) The Board adopted the Referee's Findings of Fact and Conclusions of Law and affirmed the Referee's Order. Claimant now appeals to this Court.
7. The employer reviewed video surveillance and became aware that the train left the Fernrock Station without the Operator closing the doors.
8. The employer observed that the claimant did not open his window and look out the window before the train left the station.
9. The employer observed that as the train hit 7 MPH, the train doors closed automatically.
10. The employer observed that after the train stopped in the tunnel, the train doors opened, and the claimant used the Toggle Switch to close the doors.
11. The claimant did not contact the dispatcher.
12. The claimant did not make a Ground Inspection.
13. The employer discharged the claimant for violating the rules regarding the Operating of Trains.
14. The claimant violated the employer's policies and procedures.
This Court's review in appeals from orders of the Board "is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law, and whether findings of fact are supported by substantial evidence." Bosch v. Unemployment Compensation Board of Review, 55 A.3d 758, 760 n.4 (Pa. Cmwlth. 2012).
On appeal to this Court, Claimant argues that the Board erred in holding that he engaged in willful misconduct because the evidence of record shows only that he was negligent and negligent conduct does not constitute willful misconduct. Section 402(e) states that a claimant is ineligible for UC benefits if he is discharged for "willful misconduct connected with his work." 43 P.S. § 802(e). The Pennsylvania Supreme Court has defined "willful misconduct," which is not defined in the Law, as:
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.Caterpillar, Inc. v. Unemployment Compensation Board of Review, 550 Pa. 115, 123, 703 A.2d 452, 456 (1997). As Claimant argues, mere negligence does not constitute willful misconduct. Myers v. Unemployment Compensation Board of Review, 533 Pa. 373, 378, 625 A.2d 622, 625 (1993).
Where an employer discharges an employee for a violation of its policy, the employer bears the burden to show that: (1) a reasonable policy existed; and (2) the employee violated the policy. Caterpillar, Inc., 550 Pa. at 123, 703 A.2d at 456. Once the employer makes this showing, the employee has the burden of showing that he had good cause for his violation of the policy. Williams v. Unemployment Compensation Board of Review, 596 A.2d 1191, 1193 (Pa. Cmwlth. 1991).
Claimant argues that because there is no evidence that his failure to follow Employer's policies was intentional or conscious, there is no support for a holding that he engaged in willful misconduct. There is a difference between a negligent act that may be contrary to an employer's interests and a failure to obey an employer's safety regulation altogether. In Myers, for example, the question before the Supreme Court was whether a truck driver engaged in willful misconduct when he was involved in three motor vehicle accidents in six months. Id. at 375, 625 A.2d at 624. This issue did not involve a violation of an employer's work rule, but rather with whether there was "willful disregard for an employer's interests" or "negligence indicating an intentional disregard of the employer's interest." Caterpillar, Inc., 550 Pa. at 123, 703 A.2d at 456. Where an employer's work rule is at issue, this Court has held that failing to fulfill an affirmative obligation created by a work rule may establish willful misconduct. Heitczman v. Unemployment Compensation Board of Review, 638 A.2d 461, 464 (Pa. Cmwlth. 1994).
The employer in Myers also alleged that the claimant in that case failed to properly report the third accident, but the Supreme Court found that this was not supported by substantial evidence. Myers, 533 Pa. at 380-81, 625 A.2d at 626.
In Heitczman, the employer had a company rule that truck drivers were required to walk around their truck and inspect the area each time before backing up. Id. at 462. The claimant failed to follow the rule and backed into a light pole. Id. at 463. He was discharged by his employer for violation of the work rule. Id. at 462. The claimant argued that hitting the light pole was mere negligence, but this Court found willful misconduct because of his failure to walk around the truck in accordance with the established work rule. Id. at 464. In another case, Moran v. Unemployment Compensation Board of Review, 973 A.2d 1024, 1026 (Pa. Cmwlth. 2009), the claimant forgot to apply the brake and place a tire chock when parking a work truck, in violation of a known work rule, resulting in the truck rolling away and damaging property. Despite the claimant's argument that failure to apply the break and chock was mere negligence, this Court held that the violation of the work rule constituted willful misconduct. Moran, 973 A.2d at 1030.
Similarly, in this case, Employer had policies that held Claimant responsible for the proper operation of the doors and train (FOF ¶ 2). These policies specifically included ensuring that the "doors are closed before moving the train," inspecting the train and calling the dispatcher when the pilot light goes out or the doors open while the train is moving. (Train/Vehicle Operator Responsibility Rules RDR-924(A)(3); Subway/Elevated Division Special Instructions 29-OL4(B)(1)-(2); Hr'g Tr. at 15.) Claimant does not dispute that he moved the train without ensuring that the doors were closed and failed to perform a ground inspection or contact the dispatcher. (Claimant's Br. at 4, 6.) Claimant argues that he was distracted by a radio check procedure, but the Referee, whose findings and conclusions were adopted by the Board, did not credit this explanation. (Referee Decision at 2.) Thus, Employer established that Claimant violated its policies and Claimant failed to establish good cause for this violation. Under our precedent, this is sufficient to establish willful misconduct.
According to the testimony of Employer's Assistant Director of Transportation, Subway Elevated Division, the pilot light "is a green light on [a driver's] dashboard which enables [a driver] to move [a] train. It tells you you're allowed to move your train once you have that green light. They're not to move the train without that green light." (Hr'g Tr. at 14.) --------
For these reasons, we affirm the Order of the Board.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, February 26, 2013, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge