Opinion
No. 1163 C.D. 2011
01-12-2012
Mark Millwright & Rigging, Inc., Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Mark Millwright & Rigging, Inc. (Employer) petitions for review of an order of the Unemployment Compensation Board of Review (Board) granting unemployment compensation benefits to Dylan D. Keim (Claimant). The Board reversed a referee's order finding Claimant ineligible for benefits pursuant to Section 402(b) of the Unemployment Compensation Law (Law) because he voluntarily quit his employment without cause of a necessitous and compelling nature. Because we agree with the Board that Employer terminated Claimant and he did not voluntarily quit, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b).
Claimant worked for Employer full-time as a welder/millwright through August 4, 2010, the date of his separation from employment. This benefits dispute turns upon the circumstances surrounding his separation.
The unemployment compensation authorities issued a determination granting Claimant benefits pursuant to Sections 401(d)(1), 402(b) and 402(e) of the Law. See 43 P.S. §801(d)(1), 43 P.S. §802(b), (e). Employer appealed, and a referee held a hearing.
At the hearing, Claimant and Mark Painter, owner of Employer (Owner), testified. Both Claimant and Owner testified about a discussion regarding Employer's policy relating to compensable time for employees' travel between jobsites. Having lost his driver's license, Claimant needed transportation between jobsites. Employer transported Claimant, for which he received no remuneration. Claimant questioned why he was not paid for the time of transport between jobsites during the work day. Employer responded that payment would not be forthcoming as per its policy.
Relevant testimony at the hearing reflects that Employer did not believe Claimant lost his driver's license. Owner exchanged text messages (Texts) with Claimant about the matter as follows:
[Claimant:] Where did u get ur [sic] information about me and my drivers [sic] license?
[Owner:] You told me directly that you lost your license. You put on your unemployment that you have your license and the police show you as having your license. Who's telling the truth?
[Claimant:] I put no license on my unemployement [sic] ... and what police department because I need to fix that[.] [sic]Reproduced Record (R.R.) at 17a-20a (emphasis added). Claimant did not reply.
[Owner:] You put on your unemployment that you were off due to lack of work and that you had your license.
[Claimant:] Hate to break it to ya [sic] but Penn dot [sic] has had my drivers [sic] license since july [sic] 22 ... you should think about asking another police station before you tell me MY business!
[Owner:] Hey dude, don't go mouthing off to me. I don't want, warrant or need your crap. I was only telling you what we knew. Why don't you do yourself a favor and find somewhere else to work. Obviously you don't appreciate what I or the company does for you!
Although scheduled to work, Claimant did not report to work the following day. Employer did not call Claimant when he did not come in as scheduled. When he returned to the worksite nine days later to pick-up his paycheck and return his tools, the general manager asked what he was doing. Claimant responded that Owner fired him. The general manager advised he was not aware Claimant was fired.
The referee found the language Owner used in the Texts did not amount to termination and concluded Claimant voluntarily left his employment without good cause. R.R. at 53a-56a. Claimant appealed.
The Board determined that the language Employer used in the Texts had the immediacy and finality of a discharge. The Board found Claimant credible and resolved any conflicts in the testimony in his favor. Finding Employer's discharge caused the separation, the Board also concluded Claimant did not commit willful misconduct and granted benefits to Claimant under Section 402(e).
Employer filed a petition for review from the Board's order.
Our review is limited to determining whether the necessary findings of fact were supported by substantial evidence, whether errors of law were committed, or whether constitutional rights were violated. Oliver v. Unemployment Comp. Bd. of Review, 5 A.3d 432 (Pa. Cmwlth. 2010) (en banc). --------
Employer argues Claimant voluntarily quit because the Texts reflect that Owner offered Claimant the choice of whether to continue working. Employer contends Owner's text did not possess the immediacy and finality necessary to constitute a termination given the totality of the circumstances. Rather, Employer asserts, the circumstances show Claimant was dissatisfied with the lack of compensation for transport between jobs and questioning regarding his license, and thus "discharged himself." Pet'r's Br. at 9-11.
Whether a claimant has quit voluntarily or has been discharged is a question of law subject to this Court's review. Port Auth. of Allegheny Cnty. v. Unemployment Comp. Bd. of Review, 955 A.2d 1070 (Pa. Cmwlth. 2008). Where a claimant, without any action by his employer, resigns, leaves or quits employment, that action amounts to voluntarily leaving for purposes of unemployment compensation benefits. Monaco v. Unemployment Comp. Bd. of Review, 523 Pa. 41, 565 A.2d 127 (1989). A finding of voluntary termination is essentially precluded unless a claimant has a conscious intention to leave his employment. Fekos Enters. v. Unemployment Comp. Bd. of Review, 776 A.2d 1018 (Pa. Cmwlth. 2001).
However, when the dispute regarding grounds of separation pertains to a communication between a claimant and an employer, we look to the language giving rise to the dispute. Torsky v. Unemployment Comp. Bd. of Review, 474 A.2d 1207 (Pa. Cmwlth. 1984). Moreover, whether a separation will be determined a voluntary quit or a discharge depends upon the totality of the circumstances surrounding the incident. Phila. Parent Child Ctr., Inc. v. Unemployment Comp. Bd. of Review, 403 A.2d 1362 (Pa. Cmwlth. 1979).
This Court holds that if an employer's language contains both the immediacy and finality of a firing, then it constitutes a discharge. Keast v. Unemployment Comp. Bd. of Review, 503 A.2d 507 (Pa. Cmwlth. 1986). An employer does not need to use the words "discharged" or "fired" to show finality. White v. Unemployment Comp. Bd. of Review, 188 A.2d 759, 760 (Pa. Super. 1963) (employer's phrase "there's the door" amounted to discharge under the circumstances). However, if the language leaves an employee room for choice, the requisite finality is lacking. Keast. Use of the word "if" arguably provides a claimant with a choice. Wentovich v. Unemployment Comp. Bd. of Review, 425 A.2d 483 (Pa. Cmwlth. 1981); Torsky.
Employer claims the Texts are similar to the choices presented to the claimants in Wentovich and Bell v. Unemployment Compensation Board of Review, 921 A.2d 23 (Pa. Cmwlth. 2007).
In Wentovich, the employer reasonably asked the claimant not to eat at a competing restaurant during her break, and it advised if she did not like that condition, she could leave. As the claimant refused to comply with the condition, she quit. Obviously, the current situation differs from that in Wentovich.
The facts in Bell are also materially different from this case. In Bell, the undisputed evidence showed that the claimant asked to be laid off on a number of occasions during an argument with his employer. In response, the employer said if the claimant did not like working for him, "I suggest you put your truck out front and go home." Bell, 921 A.2d at 25. Unlike the circumstances in Bell, here Claimant did not indicate a desire to be laid off from employment.
Unlike in Wentovich and Bell, the phrasing used here does not imply that Employer gave Claimant an option to leave. Owner stated "why don't you [] find somewhere else to work" in a heated exchange after telling Claimant he did not "want, warrant or need your crap." R.R. at 20a. He did not ask nor offer an alternative to leaving. When asked by the referee where the choice was, Owner responded, "I don't know." R.R. at 43a. When asked about the intent of the words stating Claimant should find somewhere else to work, Owner testified he did not think it was his job to dicker and barter with the employee and he bent over backwards. Owner further testified that he texted as he did "Because I was extremely tired of being threatened by this individual and just constantly being badgered by him about the company policies." Id.
Claimant's testimony was clear that he believed he was fired as no one called him to say he was not fired after the exchange of Texts. R.R. at 46a. He testified he spoke to the receptionist, and she told him that he was already terminated. Id. Claimant also noted he saw the receptionist's calendar which had him marked as fired. R.R. at 47a.
We are bound to examine the testimony in the light most favorable to the party in whose favor the Board has found when assessing the evidence. Taylor v. Unemployment Comp. Bd. of Review, 474 Pa. 351, 378 A.2d 829 (1977). The Board, as the fact-finder, credited Claimant's testimony over that of Owner. The Board noted in its findings that Employer unjustly accused Claimant of not losing his drivers' license. Under the totality of the circumstances, the Board reasonably concluded that Employer discharged Claimant in the Texts.
Since Claimant was discharged, we must now consider whether Claimant's discharge was due to willful misconduct. Sweigart v. Unemployment Comp. Bd. of Review, 408 A.2d 561 (Pa. Cmwlth. 1979).
Employer bears the burden of showing Claimant engaged in willful misconduct under Section 402(e). Williams v. Unemployment Comp. Bd. of Review, 596 A.2d 1191 (Pa. Cmwlth. 1991). This Court defines "willful misconduct" as (a) an act of willful disregard of an employer's interests; (b) a deliberate violation of rules; (c) disregard of standards of behavior which an employer has a right to expect; or, (d) negligence indicating an intentional and substantial disregard for employer's interests or an employee's duties. Oliver v. Unemployment Comp. Bd. of Review, 5 A.3d 432 (Pa. Cmwlth. 2010) (en banc). Employer did not submit any evidence of willful misconduct. The Board made a specific finding that "[C]laimant did not commit willful misconduct." Bd. Op., Finding of Fact No. 13. The Board's determination that Claimant did not commit willful misconduct is supported by substantial evidence.
Based on the foregoing, we affirm the Board.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 12th day of January, 2012, the order of the Unemployment Compensation Board of Review is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge