Opinion
No. 951 C.D. 2012
04-09-2013
John Jones, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McCULLOUGH
John Jones (Claimant) petitions for review of the April 30, 2012 order of the Unemployment Compensation Board of Review (Board) reversing the decision of a referee and holding that Claimant is ineligible for 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 benefits for any week in which his unemployment is due to his discharge from work for willful misconduct connected with his work.
The Board's findings may be summarized as follows. Claimant was employed by Gemalto, Inc. (Employer) from October 12, 1996, to April 28, 2011. Employer's policy prohibits acts of violence or harassment against other employees. Claimant was aware, or should have been aware, that termination of employment was possible for committing any workplace violence or harassment against another employee in the workplace. The policy is set forth in Employer's Employee Handbook (Handbook), and Employer has posted a statement of zero tolerance for workplace violence on a work bulletin board. (Findings of Fact Nos. 1-5.)
On April 28, 2011, shortly before 11:00 a.m., Claimant was involved in a physical altercation with Employer's building manager, Edward Vega (Vega). Following this altercation, Claimant punched his time card and left the workplace without notifying a manager or supervisor. At the time, both Claimant's manager and supervisor were in the building, and two telephones were available for Claimant to use to report the incident to human resources. Claimant had been scheduled to work from 7:00 a.m. to 3:00 p.m. on this day. Prakesh Patel (Patel), Employer's human resources associate, subsequently observed Vega walking into the lobby with a bloody smock, a bloody face, and three missing teeth. Employer then transported Vega to a hospital for medical treatment. After leaving the worksite, Claimant met with an attorney and then sought medical treatment for wrist and knee pain. Shortly thereafter, Employer discharged Claimant for engaging in violence in the workplace and leaving the workplace without authorization. Employer also filed criminal charges against Claimant. Specifically, Claimant was charged with aggravated assault, simple assault, recklessly endangering another person, and disorderly conduct. (Findings of Fact No. 6, 7, 9-20.; Certified Record (C.R.) Item No. 23.)
Claimant filed a claim for benefits with the local service center, which determined that Claimant violated two work rules without good cause and, thus, was ineligible for benefits under section 402(e) of the Law. (C.R. Item No. 4.) Claimant appealed, and a referee held a hearing on June 21, 2011. Claimant testified that he did not inform his manager, his supervisor, or human resources when he left the building, because he and other co-workers had previously complained to the director of human resources about Vega's actions to no avail. (Notes of Testimony (N.T.) at 24-28.) Further, Claimant testified that he was not thinking clearly when he left the building, and just wanted to seek legal counsel. (N.T. at 28, 35.) Kerry Friel, Claimant's co-worker, testified that he also complained to human resources about threats made to him by Vega. (N.T. at 36.) Friel further testified that he was transferred to another department as a result of his complaints. (N.T. 39-40.) In relevant part, Patel testified that Claimant's employment would have been terminated solely because he left the workplace without authorization. (N.T. at 19.)
Notes of Testimony (N.T.) refers to testimony provided at the referee's hearing on June 21, 2011.
By order dated June 28, 2011, the referee reversed the local service center's determination. (C.R. Item No. 13.) The referee found insufficient evidence to determine that Claimant initiated the fight and concluded that Claimant's actions did not constitute willful misconduct. (Id.) Employer appealed to the Board. On August 17, 2011, the Board issued an order remanding the case to the referee for the purpose of receiving additional testimony and evidence regarding the disposition of the criminal charges filed against Claimant. (C.R. Item No. 19.) Following a trial, the jury returned a verdict of not guilty on all charges filed against Claimant. (C.R. Item No. 24.) The referee held a remand hearing on February 13, 2013. (C.R. Item No. 27.) Claimant testified that the jury returned a verdict of not guilty on all charges filed against him. Patel attended on behalf of Employer but gave no testimony. (N.T., February 13, 2013, at 7-8.)
34 Pa. Code §101.104(d) authorizes the Board to remand the case to the referee to receive additional information for the proper conclusion of the case. The entire record is then returned to the Board for its consideration.
By decision and order dated April 30, 2012, the Board reversed the referee's decision. (C.R. Item No. 28.) The Board found that Claimant was discharged for two reasons, violence in the workplace and leaving without authorization. The Board determined that the record did not contain sufficient evidence to establish that Claimant was doing anything more than defending himself during the altercation with Vega. However, the Board accepted Patel's testimony that Claimant would have been fired solely for leaving work without permission. In addition, the Board expressly rejected Claimant's testimony that he was not thinking clearly when he left work, and found that, after leaving the worksite, he had sufficient mental capacity to meet with a lawyer and then seek medical treatment. The Board determined that Claimant's decision to leave the worksite without authorization constituted a disregard of the standards of conduct that Employer has a right to expect of its employees. (Board's Opinion at 4.)
In unemployment cases, the Board is the ultimate fact-finder empowered to make all determinations as to witness credibility and evidentiary weight. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 270, 501 A.2d 1382, 1385 (1985). The Board's findings are conclusive and binding on appeal where, as here, the record contains substantial evidence to support them. Brannigan v. Unemployment Compensation Board of Review, 887 A.2d 841 (Pa. Cmwlth. 2005).
On appeal to this Court, Claimant argues that the Board erred in concluding that his actions amounted to willful misconduct because he was not aware of, and did not deliberately violate, Employer's work rules. We disagree.
Our scope of review 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. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704.
Initially we note that, although the Law does not define the term willful misconduct, our courts have defined it as including: "(1) the wanton and willful disregard of the employer's interests; (2) the deliberate violation of rules; (3) the disregard of standards of behavior which an employer can rightfully expect from its employee; or (4) negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard for the employer's interests or the employee's duties and obligations." Guthrie v. Unemployment Compensation Board of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999) (citing Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 309 A.2d 165, 168-69 (Pa. Cmwlth. 1973)). The burden of proving willful misconduct rests with the employer. Guthrie, 738 A.2d at 521. When there are multiple reasons for the termination of employment, the employer only needs to establish that one reason amounts to willful misconduct. Glenn v. Unemployment Compensation Board of Review, 928 A.2d 1169, 1172 (Pa. Cmwlth. 2007). Whether an employee's conduct constitutes willful misconduct is a question of law subject to this Court's review. Guthrie, 738 A.2d at 521.
Claimant maintains that Employer did not prove that his actions constituted willful misconduct because he could not intentionally or deliberately violate a work rule of which he was unaware. Specifically, Claimant contends that the record lacks evidence of a work rule against leaving early without authorization or that Claimant was, or should have been, aware of such a work rule. However, even in the absence of an enumerated work rule, this Court has consistently held that an employee who leaves work early without having the employer's permission or good cause has committed willful misconduct. Blystone v. Unemployment Compensation Board of Review, 342 A.2d 772, 772-73 (Pa. Cmwlth. 1975).
Citing Grieb v. Unemployment Compensation Board of Review, 573 Pa. 594, 827 A.2d 422 (2003), Claimant asserts that a one-time deviation from a work rule is not enough to constitute willful misconduct. In Grieb, the claimant, a school teacher, accidentally left three unloaded shotguns in her car on school property, directly contrary to the school's prohibition on possession of weapons. Id. at 597-98, 827 A.2d at 424. The employer acknowledged that the claimant forgot that the unloaded weapons were in her vehicle. Id. at 600-01, 827 A.2d at 426. Ultimately, the Supreme Court found that this "one-time, inadvertent violation" did not rise to the level of willful misconduct. Id. at 603, 827 A.2d at 427-28. However, Grieb is distinguishable from the present case. The issue in Grieb was whether the claimant's negligent actions rose to the level of willful misconduct. In this case, however, the Board determined that Claimant had the cognitive awareness to meet with an attorney before seeking medical treatment and that Claimant's choice not to notify Employer that he was leaving work early was not an act of negligence, but an intentional and deliberate disregard for the standards of conduct reasonably expected by Employer. Thus, the Board properly concluded that Claimant is ineligible for benefits under section 402(e) of the Law.
The Dissent states that Claimant "had, immediately prior to leaving, defended himself in a physical altercation with his Manager." (Dissent at 2) (emphasis in original). However, the fact upon which the Dissent relies was not found by the Board and, in fact, is inconsistent with the Board's findings. The Board found that Claimant left the building without notifying a supervisor or manager and that "[b]oth [C]laimant's supervisor and manager were in the building at the time of the incident." (Board's Findings of Fact Nos. 12, 13.) The Board's findings are supported by the testimony of Employer's witness that Claimant could have gone to "his supervisor . . . Andrew Lopez . . . [o]r his manager . . . Joe Wright" who were in the building at the time. (N.T. at 18-19) (emphasis added). Further, in contrast to the Dissent's conclusion that it was reasonable for Claimant to leave without giving notice after the physical altercation, the Board, in concluding otherwise, noted Claimant's testimony that he left the worksite during his shift because he believed that Employer did not address his concerns when he previously reported them. (Finding of Fact No. 17; N.T. at 24.)
Based on the evidence of record, we cannot say that the Board's findings or conclusions of law reflect any error. An appellate court exceeds its scope of review when it chooses to accept or reject portions of the record and in effect make its own findings if fact. Department of Transportation, Bureau of Traffic Safety v. O'Connell, 521 Pa. 242, 555 A.2d 873 (1989).
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 9th day of April, 2013, the order of the Unemployment Compensation Board of Review, dated April 30, 2012, is hereby affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
DISSENTING OPINION BY SENIOR JUDGE FRIEDMAN
I respectfully dissent. Because I believe that John Jones (Claimant) had good cause for leaving his work with Gemalto, Inc. (Employer), without permission, I would reverse the order of the Unemployment Compensation Board of Review (UCBR) and conclude that Claimant is not ineligible for benefits under section 402(e) of the Unemployment Compensation Law (Law).
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 benefits for any week in which his unemployment is due to discharge from work for willful misconduct.
There is no dispute that Claimant and Edward Vega (Manager) engaged in a physical altercation and that Claimant immediately left the premises. Despite the UCBR's determination that Claimant did not offer a credible explanation for his actions, i.e. leaving without permission, I would conclude that, based on the UCBR's findings, none was necessary because, as a matter of law, Claimant had good cause for leaving the work-site.
Whether a claimant's actions constitute willful misconduct and whether a claimant proved good cause are questions of law reviewable by this court. Department of Corrections v. Unemployment Compensation Board of Review, 943 A.2d 1011, 1015-16 (Pa. Cmwlth. 2008).
"[L]eaving work early without the employer's permission constitutes willful misconduct unless motivated by good cause . . . ." Grispino v. Unemployment Compensation Board of Review, 472 A.2d 288, 289 (Pa. Cmwlth. 1984) (emphasis added). In this case, Claimant left without seeking approval from Employer. Our only question then is whether Claimant had good cause for leaving the premises.
"A claimant has good cause if his or her actions are justifiable and reasonable under the circumstances." Docherty v. Unemployment Compensation Board of Review, 898 A.2d 1205, 1208-09 (Pa. Cmwlth. 2006). Claimant had, immediately prior to leaving, defended himself in a physical altercation with his Manager. By leaving Employer's premises, Claimant removed himself from a volatile situation, and acted reasonably and justifiably under the circumstances. A reasonable person would not remain in a situation where he had just been pushed, hit, and kicked by his manager. (UCBR's Findings of Fact, No. 10.) Therefore, Claimant had good cause for leaving the premises. Because Claimant had good cause for leaving, his conduct is "not in disregard of standards that the employer had a right to expect." Rossi v. Unemployment Compensation Board of Review, 544 Pa. 261, 267, 676 A.2d 194, 197-98 (Pa. Cmwlth. 1996).
The UCBR stated that "[t]he record did not contain sufficient competent (firsthand) evidence or testimony that the claimant did more than defend himself during the final altercation with [Manager]." (UCBR's Decision at 4.) --------
Accordingly, I would reverse.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge