Opinion
No. 1207 C.D. 2011
03-07-2012
Richard Lewis, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge
This case was assigned to the opinion writer before January 7, 2012, when Judge Pellegrini became President Judge.
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Richard Lewis (Claimant), pro se, petitions for review of the Order of the Unemployment Compensation Board of Review (Board) that adopted the determination of an Unemployment Compensation Referee (Referee), which found Claimant ineligible for unemployment compensation (UC) benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law). Claimant argues that the Board erred in finding him ineligible for UC benefits because his actions did not constitute willful misconduct.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
On December 28, 2010, Claimant was discharged from his position as a production operator at UTI Corporation - Accellent (Employer). Claimant filed a claim for UC benefits stating that he was discharged from employment following a verbal altercation with his supervisor after the supervisor touched Claimant in the chest. In response, Employer indicated that Claimant was discharged for violating company policy (Policy). By Notice of Determination mailed January 31, 2011, the Scranton UC Service Center (Service Center) determined that Claimant was eligible for UC benefits pursuant to Section 402(e) of the Law. The Service Center determined that Claimant's actions did not demonstrate a disregard of the Employer's interests or the standards of behavior that the Employer has a right to expect of its employees. Employer timely appealed and the Referee held a hearing on March 28, 2011. At the hearing, Claimant presented his own testimony and Employer presented two witnesses. Based on that hearing record, the Referee made the following findings of fact. (Referee's Findings of Fact (FOF) ¶ 1; Claimant Questionnaire, R. Item 2; Employer's Notice of Application, R. Item 3; Notice of Determination at 1, R. Item 4; Referee's Hr'g Tr. at 1, R. Item 8.)
2. The employer's Section 8 - Safety Policy for Violence states, in relevant part, it is the responsibility of every employee of Accellent to ensure that fellow employees and all visitors to our company are safe and free from assault and/or threats of violence. Therefore, Accellent does not tolerate violence, including but not limited to: threats of violence, fights, mock fights, physically harming another, shoving, pushing, harassing, intimidating and/or coercing behavior, brandishing weapons, and threatening or talking of engaging in those activities by an employee at any time while on company premises or while conducting
company business. Behavior inconsistent with this policy could result in discipline up to and including termination.
3. The claimant was aware of the employer's company policy.
4. On December 23, 2010, the claimant called the employer to report that he would be late for work. The claimant was advised that he would be assigned 0.5 points for his tardiness under company policy.
5. The claimant arrived a half-hour late for work.
6. The claimant contacted the second shift supervisor, [(Supervisor)], to report that he arrived for work.
7. [Supervisor] went to the claimant's work machine around 4:45 PM to provide him with the instructions on the shutdown procedures before the end of his shift due to the holiday.
8. The claimant raised the issue that he was assigned a half-point for his late arrival.
9. [Supervisor] provided the claimant with the same explanation on why he was charged a half-point.
10. The claimant questioned [Supervisor] several times on why he could not do him a favor and not assign him a half attendance point.
11. [Supervisor] began to walk backwards as the claimant began to walk closer to him as the conversation began to become heated.
12. [Supervisor] pointed towards the claimant as he backed up and made a comment that he was just doing his job. The claimant felt [Supervisor] at one time touched his chest while pointing at him.
13. The claimant began to holler and said several times, "I could f**k you up p***y" and "You lucky I don't break you the f**k up".
14. [Supervisor] began to walk away; the claimant returned back to work.
15. The claimant was brought back to a conference room a half-hour later and advised that he was suspended from work.
16. The claimant was not offered an opportunity to provide an explanation of the events that transpired between himself and [Supervisor] before he was terminated.(Referee's Findings of Fact (FOF) ¶¶ 2-17). The Referee found Supervisor's testimony to be credible. The Referee concluded that Claimant's comments were inappropriate and constituted a threat of physical harm in violation of Employer's Policy. Moreover, the Referee concluded that Claimant did not offer adequate justification for his inappropriate behavior. The Referee concluded that Claimant's belief that Supervisor had touched him during the argument did not justify Claimant's threats of physical harm. The Referee held that Claimant was discharged for willful misconduct in connection with his work and, therefore, Claimant was ineligible for UC benefits pursuant to Section 402(e) of the Law. (Referee's Decision at 2-3.)
17. On December 28, 2010, the claimant received a telephone call from the employer and [was] advised that his employment was terminated.
Claimant appealed to the Board, which adopted and incorporated the Referee's determination as its own. The Board specifically rejected Claimant's argument that Supervisor's touch justified his outburst. The Board concluded that, while Supervisor may have touched Claimant during the argument, such conduct "[was] insufficient provocation for the claimant's explosive behavior." (Board Order at 1.) Claimant now petitions this Court for review.
In unemployment proceedings, our "review is limited to determining whether constitutional rights were violated, whether an error of law was committed, whether a practice or procedure of the Board was not followed or whether the findings of facts are supported by substantial evidence in the record." Western and Southern Life Insurance Co. v. Unemployment Compensation Board of Review, 913 A.2d 331, 334 n.2 (Pa. Cmwlth. 2006). --------
On appeal, Claimant argues that the Board erred in finding that his actions constituted willful misconduct that rendered him ineligible for UC benefits. Section 402(e) of the Law provides that an employee is ineligible for UC benefits when his "unemployment is due to [his] discharge . . . from work for willful misconduct connected with [his] work." 43 P.S. § 802(e). While the Law does not define "willful misconduct," our courts have defined it as:
(1) a wanton or willful disregard for an employer's interests; (2) a deliberate violation of an employer's rules; (3) a disregard for standards of behavior which an employer can rightfully expect of an employee; or (4) negligence indicating an intentional disregard of the employer's interest or an employee's duties or obligations.Philadelphia Parking Authority v. Unemployment Compensation Board of Review, 1 A.3d 965, 968 (Pa. Cmwlth. 2010). Whether a claimant's conduct rises to the level of willful misconduct is a question of law subject to this Court's review. Lee Hospital v. Unemployment Compensation Board of Review, 589 A.2d 297, 299 (Pa. Cmwlth. 1991).
Where the claimant's misconduct is based on the violation of an employer's rule or policy, the employer bears the burden of establishing both the existence of the rule or policy and its violation by the claimant. Once the employer has established the rule and its violation, the burden shifts to the claimant to demonstrate either that the rule is unreasonable or that good cause existed to violate the rule. Whether a claimant has good cause to violate an employer's rule or policy is question of law subject to this court's review . . . . 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). Here, Employer satisfied its burden of proving that it had a work rule that states:
[I]t is the responsibility of every employee of Accellent to ensure that fellow employees and all visitors to our company are safe and free from assault and/or threats of violence. Therefore, Accellent does not tolerate violence, including but not limited to: threats of violence . . . by an employee at any time while on company premises or while conducting company business.(FOF ¶ 2; Employee Handbook at 35, Employer Ex. 1, R. Item 8.) Employer introduced the relevant pages of its Employee Handbook, which contained these rules, as well as Claimant's written acknowledgement of that Policy. The Referee admitted Employer's Policy and Claimant's written acknowledgement of that Policy into evidence over Claimant's objections. The Referee credited Supervisor's testimony that Claimant was aware of the Policy, which was in effect at the time Claimant was hired. Moreover, both Claimant and Supervisor testified that there was a heated argument regarding the half attendance point. Claimant acknowledged that he became agitated and upset. Furthermore, Claimant acknowledged saying several profanities to Supervisor to the effect that "[Y]ou're lucky I don't break you the f[**]k up" and "I could f[**]k you up." (Referee Hr'g Tr. at 12, 16, R. Item 8.) Accordingly, we agree with the Referee's conclusion that: (1) Employer established the existence of its Policy; (2) Claimant was aware of the Policy; and (3) Claimant violated the Policy. As such, the burden shifted to Claimant to demonstrate that the use of profanity and threats of physical harm were "justifiable and reasonable under the circumstances." Docherty, 898 A.2d. at 1208-09. (Employee Handbook at 35, Employer Ex. 1, R. Item 8; Employee Acknowledgment Form, Employer Ex. 1, R. Item 8; Referee's Hr'g Tr. at 6-7, 12, 16-19, R. Item 8; Referee's Decision at 3.)
Claimant asserts that he was justified in his conduct because he responded only after being touched by Supervisor. Claimant argues that Supervisor's touch served as a provocation, which justified Claimant's actions in yelling profanities and violating the company Policy by making threats of physical harm. (Referee's Hr'g Tr. at 17-19, R. Item 8.) This Court has previously recognized that a threat towards one's supervisor constitutes willful misconduct. See Unemployment Compensation Board of Review v. Lee, 340 A.2d 586, 588 (Pa. Cmwlth. 1975). Here, the Referee and Board credited Supervisor's testimony that Claimant's statements constituted a threat of bodily harm. The Board's conclusion that Claimant's statements constituted a threat towards Supervisor is supported by substantial evidence. Additionally, we note that Claimant, no matter how justified, "had no right to threaten" Supervisor. Id. Therefore, we conclude that Claimant's threatening statements to Supervisor constituted willful misconduct.
Moreover, even if Claimant's statements did not constitute a threat to Supervisor, this Court has previously held that "offensive language toward a supervisor can in some situations amount to 'willful misconduct.'" Horace W. Longacre, Inc. v. Unemployment Compensation Board of Review, 316 A.2d 110, 111 (Pa. Cmwlth. 1974). The key issues are whether the offensive language was "de minimis" or was justifiably provoked. Id. at 112. Here, Claimant's statements were neither justifiably provoked, nor was the language "de minimis." Claimant's use of the words "f[**]k" and "p[***]y" would generally be considered offensive "by even the most puritanical standard." Id. Additionally, Claimant's use of such profanity goes well beyond a "de minimis" response.
Claimant's argument that his actions were justifiably provoked because Supervisor touched him relies on a contested issue of fact. Claimant alleged in his testimony that Supervisor touched him and that this action provoked Claimant into using profanity and making threatening statements. On the other hand, Supervisor testified that he pointed at Claimant during the argument. (Referee's Hr'g Tr. at 12, 16, R. Item 8.) Here, the Referee and Board accepted Supervisor's testimony as credible rather than Claimant's testimony. Moreover, the Board specifically noted that, even if Supervisor had touched Claimant, such action did not establish justifiable provocation for Claimant to make his statements threatening to "f[**]k up" Supervisor. (Referee's Hr'g Tr. at 12, 16, R, Item 8; Board Order at 1, R. Item 11.) "[Q]uestions of credibility and evidentiary weight . . . are matters for the fact finder, not the reviewing court." Freedom Valley Federal Savings & Loan Association v. Unemployment Compensation Board of Review, 436 A.2d 1054, 1055 (Pa. Cmwlth. 1981). Therefore, we conclude that Claimant's conduct was neither de minimis nor justified and, consequently, constituted willful misconduct.
For the following reasons, we conclude that Claimant's conduct constituted willful misconduct. Claimant has failed to establish that he had good cause for his actions and, accordingly, is not eligible for benefits under Section 402(e) of the Law.
Accordingly, we affirm the Order of the Board.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, March 7, 2012, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge