Opinion
No. 862 C.D. 2014
12-30-2014
Philly Transportation, LLC, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Philly Transportation, LLC (Employer) challenges the order of the Unemployment Compensation Board of Review (Board) that affirmed the referee's determination that Kim A. Briggs (Claimant) was 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).
The facts, as initially found by the referee and confirmed by the Board, are as follows:
1. The Claimant was last employed by Philly Transportation as a part-time School Bus Driver from December 8, 2008 through November 22, 2013 at a final rate of $104.50 a day for four days per week.
2. On approximately November 8, 2013, the Claimant was assigned another bus route.
3. The Claimant previously worked the bus route for five years.Referee's Decision, January 27, 2014, (Decision), Findings of Fact Nos. 1-10 at 2; Reproduced Record (R.R.) at R.R.109a.
4. The Claimant had a previous work related back injury which she suffered approximately in April 2013.
5. The new bus route required the Claimant to drive [a] larger bus.
6. As a result of driving a larger bus, the Claimant reported to the Employer she was experiencing back pain.
7. The Claimant also circulated to parents a Petition to have her reassigned to her bus route.
8. On November 20, 2013, the Employer received a report alleging the Claimant cursed at students on the bus and at the School Administrator.
9. When questioned by the Employer, the Claimant denied cursing at the students or at the School Administrator.
10. As a result, the Employer discharged the Claimant.
The referee determined:
At the Referee's Hearing the Employer testified the Claimant was reassigned to another bus route because she could not get along with the Assistant on the bus. The Employer further testified the Claimant circulated a Petition to parents to have her reassigned to her original bus route. In addition, the Employer testified the Employer received a report alleging the Claimant cursed the kids on the bus and the School Administrator.
The Claimant admitted she circulated the petition and presented the Petition to the Employer as she felt she was reassigned unfairly. The Claimant further testified she informed the Employer that driving a bigger bus aggravated her previous back work related injury. In addition, the Claimant denied cursing the students or the School Administrator and asked the Employer to review the bus recorder as the recorder is always running when students are on the bus.Decision at 2; R.R. at R.R.109a.
At the Referee's Hearing the Employer failed to present first hand testimony that would tend to refute, dispute or discredit the Claimant's testimony at the Hearing. As a result, the Referee concludes that the Employer has not met its burden of proof and the Claimant cannot be held ineligible in accordance with Section 402(e) of the Law.
Employer appealed to the Board which adopted the referee's findings and conclusions and affirmed.
Employer contends that the Board erred when it concluded that Claimant did not commit willful misconduct.
This Court's review in an unemployment case is limited to a determination of whether constitutional rights were violated, errors of law were committed, or essential findings of fact were not supported by substantial evidence. Lee Hospital v. Unemployment Compensation Board of Review, 637 A.2d 695 (Pa. Cmwlth. 1994).
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 (Pa. Cmwlth. 1991). Willful misconduct is defined as conduct that represents a wanton and willful disregard of an employer's interest, deliberate violation of rules, disregard of standards of behavior which an employer can rightfully expect from the employee, or negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard for the Employer's interest or employee's duties and obligations. Frick v. Unemployment Compensation Board of Review, 375 A.2d 879 (Pa. Cmwlth. 1977). The Employer bears the burden of proving that it discharged an employee for willful misconduct. City of Beaver Falls v. Unemployment Compensation Board of Review, 441 A.2d 510 (Pa. Cmwlth. 1982). The Employer bears the burden of proving the existence of the work rule and its violation. Once the Employer establishes that, the burden then shifts to the Claimant to prove that the violation was for good cause. Peak v. Unemployment Compensation Board of Review, 501 A.2d 1383 (Pa. 1985).
I. Circulation of Petition.
The Board found that Employer asserted that Claimant circulated a petition to return Claimant to her prior route among the parents of the children on the route to which Claimant was previously assigned. Employer asserts that this act constituted willful misconduct. Employer argues that contacting an employer's customers to enlist their support in a routine workplace disagreement is unacceptable on its face, grossly unprofessional, and endangers valuable client relationships. Employer equates the situation with that of a legal secretary in a law firm who is given an unpleasant transcription task and called the firm's clients to complain about the assignment and asked for their support against the attorney who gave her the assignment. Employer argues that Claimant wantonly and willfully disregarded its interests and the standards of behavior it could rightfully expect. See Royster v. Unemployment Compensation Board of Review, 34 A.3d 324 (Pa. Cmwlth. 2011).
With respect to the circulation of the petition, Eric Faust (Faust), president of Employer, testified that Claimant "went on a weekend . . . campaign with various students' parents that were on a run to get them to sign a paper to keep her on the run because she said that . . . her co-worker was mistreating students on a bus, which was completely unfounded." Notes of Testimony, January 15, 2014, (N.T.) at 12; R.R. at R.R.72a.
Steven Laputka (Laputka), operations manager for Employer, testified:
After being taken off the small route though, she went and I was told by a parent again this is a conversation with me on the telephone with a parent that she took a blank piece of paper, had them sign it and then on the top when she brought it to us, she wrote . . . please put Kim Briggs [Claimant]. We want Kim Briggs back on this route. At the time she also as Eric said told them that the attendant was mistreating the kids. I mean it caused me all kind of problems with phone calls with parents that I had to assure them. . . .N.T. at 19; R.R. at R.R.79a. Laputka also testified that he had to perform "damage control" for Employer because of Claimant's comments about the mistreatment of the bus passengers. N.T. at 19; R.R. at R.R.79a.
Claimant admitted that she circulated a petition:
On 11/08 I was taken off my route and I just wanted my route back because I've got close to the children. I love my kids. I've been with some of the same kids for two to
three years and I enjoy working with them. They enjoy me. Their parents enjoy me. I had no problem with the school, the Director of the school I was doing. I had no problem with the teachers or the parents, so why take me off my route? And I did do a petition and they did sign it. And it wasn't just a blank piece of paper. It was a letter, which they read it and then they signed their name and put their phone number because they wanted me back on the route. And I did do that.N.T. at 27; R.R. at R.R.87a.
Claimant did not testify regarding whether she told the parents that the attendant or aide on the bus mistreated the passengers. Employer did not cross-examine Claimant to elicit testimony on this point. Further, Employer did not present any first hand testimony to establish that Claimant told the parents that the attendant mistreated the passengers. Consequently, the Board did not make a finding on what Claimant said to the parents.
It is undisputed that Employer did not have a work rule regarding the circulation of petitions. The question then becomes did the circulation of the petition that requested that Employer return Claimant to her previous route represent a wanton and willful disregard of Employer's interest, a disregard of the standards of behavior which an employer can rightfully expect from the employee, or negligence which manifested culpability, wrongful intent, evil design, or intentional and substantial disregard for the Employer's interest or Claimant's duties and obligations. Frick.
In Kelley v. Unemployment Compensation Board of Review, 466 A.2d 1143 (Pa. Cmwlth. 1983), Catherine and Michael Kelley (the Kelleys) were weekend supervisors for Pan Am Corporation (Pan Am), a provider of residential care for the mentally challenged. The Kelleys were employed in a group home which provided residential and treatment services to mentally handicapped residents of Montgomery County (County) pursuant to a contract between Pan Am and the County. The Kelleys were responsible for the care, supervision, and maintenance of the residents assigned to them. While working for Pan Am, the Kelleys noticed that the residents did not receive adequate care and treatment specifically with regard to food and medication. The Kelleys brought these conditions to Pan Am officials. The Kelleys believed that this action did not bring about adequate changes. The Kelleys then wrote a letter to the County agency which was responsible for the placement of the mentally challenged, to a Special Master in a federal court action regarding the treatment and disposition of mentally challenged residents of a state hospital, to the counsel for the Association of Retarded Citizens, and to the guardian of one of the residents who resided where the Kelleys worked. When Pan Am learned of the letters, the Kelleys were discharged. Kelley, 466 A.2d at 1144-1145.
The Board determined that the Kelleys had been discharged because they published their concerns to outsiders and did not follow Pan Am's grievance procedure. Before this Court, the Kelleys contended that the record did not support the Board's conclusion that the grievance procedure was mandatory and that it applied to the complaints contained in the letters. The Kelleys also contended that if they violated a Pan Am rule, the violation was reasonable and in good faith and did not constitute willful misconduct. Kelley, 466 A.2d at 1145.
This Court determined that the grievance procedure was sufficiently ambiguous for the Kelleys to have concluded that it did not apply to the complaints addressed in their letter. With respect to whether the airing of these concerns to those outside of Pan Am constituted willful misconduct, this Court determined:
First, there is little room for argument that the issue addressed in the claimants' letter, i.e., the care and treatment of the mentally handicapped - especially those dependent on the public for their maintenance - is one of preeminent concern. Of course, the fact that the letter dealt with a matter of considerable public concern would not insulate the claimants from a determination of willful misconduct if their motives were tainted by malice or indifference. However, the Board found as a fact, and we have no reason to dispute, that their motivation in writing the letter was to improve the living conditions of their patients. Furthermore, we believe that the claimants [Kelleys] acted reasonably in their attempts to resolve the conditions internally. They protested the conditions to the highest ranking official with whom they had any personal contact. When those efforts failed, we do not believe that reasonableness required that the claimants consult persons who were, from their perspective, totally invisible and anonymous. Finally, it is significant that the claimants [Kelleys] sent their letter to only persons who had some official or legal interest in the conditions they reported.Kelley, 466 A.2d at 1147.
In Goodwill Industries v. Unemployment Compensation Board of Review, 634 A.2d 738 (Pa. Cmwlth. 1993), Ervin L. McIntyre (McIntyre), a truck helper and occasional driver for Goodwill Industries (Goodwill), was dissatisfied with the way Goodwill conducted its business and attempted to address his concerns with Goodwill at various times. On January 25, 1992, while off duty, McIntyre prepared approximately 500 flyers that listed questions that were critical of Goodwill's operations and distributed them. On January 27, 1992, Goodwill terminated McIntyre's employment because he distributed misleading information to the public without Goodwill having an opportunity to defend itself. The Board determined that McIntyre was not ineligible for benefits under Section 402(e) of the Law, 43 P.S. §802(e). Goodwill, 634 A.2d at 739-740.
For example, the flyer asked "Do you know Goodwill gives nothing to the poor?" and "Do you know how many of your donation [sic] of clothing are baled up and sold as rags when they get to [sic] many to handle, which happens a lot?" Goodwill, 634 A.2d at 739.
Before this Court, Goodwill contended that the Board erred because McIntyre wantonly and willfully disregarded not only Goodwill's interests but also disregarded the standard of behavior expected of him as an employee because he refused to participate in an established grievance procedure and because he presented misleading information without affording Goodwill the opportunity to address McIntyre's concerns. Goodwill, 634 A.2d at 740.
The issue concerning the dissemination of misleading information is germane to the present case.
This Court employed the same test used in Kelley and weighed whether, in light of McIntyre's responsibility to Goodwill, McIntyre acted justifiably and reasonably. This Court determined that McIntyre's actions constituted willful misconduct because he declined to attend a meeting scheduled with Rick Moser, Goodwill's executive supervisor to discuss his concerns, he distributed the flyers to the general public at large rather than meet with those who possessed a direct or legal interest in the conditions reported. Goodwill, 634 A.2d at 740-741.
Here, Claimant wanted Employer to return her to her former route, which Employer declined to do. Claimant attempted to put pressure on Employer to return her to the route by contacting the parents. Claimant believed that autistic children get used to a person and would not like adjusting to a different bus driver. N.T. at 28; R.R. at R.R.88a. As in Kelley, Claimant had a concern for her charges and felt it would be in their best interest to make her concerns known. Employing the same test as in Kelley and Goodwill, Claimant had a duty to be loyal to Employer. She attempted to resolve the situation with Employer and was unsuccessful. She then circulated a petition to the parents of the children on her old route. Claimant testified that the only thing discussed with the parents was her desire to return to the old route. N.T. at 28. The Board credited Claimant's testimony. In unemployment compensation proceedings, the Board is the ultimate fact-finding body empowered to resolve conflicts in evidence, to determine the credibility of witnesses, and to determine the weight to be accorded evidence. Unemployment Compensation Board of Review v. Wright, 347 A.2d 328 (Pa. Cmwlth. 1975). Findings of fact are conclusive upon review provided that the record, taken as a whole, provides substantial evidence to support the findings. Taylor v. Unemployment Compensation Board of Review, 378 A.2d 829 (Pa. 1977).
It is unclear from the record what the petition said. Employer argued that it was just a blank paper. Claimant asserted that there was a letter that went along with it. Employer objected to the admission of the letter, and the referee sustained the objection. --------
While contacting the parents for their assistance to return her to the route is unorthodox, given the facts of the case, this Court is unable to disagree with the Board that Claimant's actions did not rise to the level of willful misconduct because her actions did not sufficiently compromise her responsibility to Employer and because she acted justifiably and reasonably.
II. Contacting Ms. Roister.
Next, Employer contends that Claimant committed willful misconduct when she contacted Ms. Roister, an administrator of a school serviced by Employer. Before the referee, Faust testified:
[W]e had a CEO of Southwest Leadership School that called my firm to complain that she was intimidated by Ms. Briggs because Ms. Briggs contacted her, which is completely out of line. I mean my drivers, my attendants don't ever speak to administration of any of the company's customers let alone the CEO of the school. And she was complaining and basically campaigning for herself to stay on a run and saying that it was . . . mistreatment of children by the aide. It was just preposterous. She gave the company a black eye by what she attempted to do and it was manipulative and obviously we weren't going to put up with it.N.T. at 8; R.R. at R.R.68a.
Claimant testified that she did not speak with Ms. Roister until after she was terminated:
I spoke to Ms. Roister the day he [Laputka] told me that I was terminated because she said I cussed her out and the children out. I'm like I don't know Ms. Roister so yes, I did call the school and I asked for Ms. Roister. She said she never even met me either because I just started two weeks ago. I didn't know her. I said, ma'am, did I cuss you out and some kids on the bus? She said no, you did not. And you can call her. I have her phone number. She said she told Steve [Laputka] it was a Muslim sister
that's garbed up. I am not Muslim and I am not garbed up. I said okay. Thank you, ma'am. She was very nice to me.N.T. at 24; R.R. at R.R.84a.
Employer failed to present any first hand evidence that Claimant spoke to Ms. Roister prior to her discharge. The only testimony was the hearsay testimony of Faust. Employer failed to establish through competent evidence that Claimant contacted Ms. Roister before her discharge. Further, the Board credited Claimant's testimony that she did not speak with Ms. Roister prior to her termination. Employer is attempting to argue its own version of the facts and not the facts found by the Board.
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge Judge Brobson did not participate in the decision in this case. ORDER
AND NOW, this 30th day of December, 2014, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
CONCURRING AND DISSENTING OPINION BY JUDGE COVEY
I concur with the Majority that "Employer failed to present any first hand evidence that Claimant spoke to Ms. Roister [an administrator of a school that Employer services] prior to her discharge." Majority Op. at 12. However, I respectfully dissent from the Majority's conclusion that Kim A. Brigg's (Claimant) actions in contacting the students' parents for their assistance in returning her to her original bus route "did not rise to the level of willful misconduct because her actions did not sufficiently compromise her responsibility to [Philly Transportation, LLC (]Employer[)] and because she acted justifiably and reasonably." Majority Op. at 11.
Claimant was employed as a school bus driver for Employer beginning December 8, 2008. On November 8, 2013, Claimant was assigned a new bus route. On the new bus route Claimant had to drive a bigger bus which purportedly caused her back to hurt. Claimant complained to Employer and asked to be returned to her original bus route. Employer refused. In response, Claimant petitioned the students' parents on her original route to get her old route back. Employer fired Claimant for petitioning the students' parents, for contacting and cursing at an administrator of another school Employer serviced, and for cursing at the students on her new bus route.
At the Referee hearing, Employer testified that Claimant petitioned parents to bring her back to her original route, and cursed at administrators and students on her new bus route. Claimant testified that her students were autistic and it was better for them to keep the same driver so she petitioned the parents to bring her back. She denied cursing at the administrators and students. The Referee credited the Claimant's testimony, and found that she did not commit willful misconduct. The UCBR adopted the Referee's findings of fact and affirmed the Referee's decision.
The Majority maintains that Kelley v. Unemployment Compensation Board of Review, 466 A.2d 1143 (Pa. Cmwlth. 1983), and Goodwill Industries v. Unemployment Compensation Board of Review, 634 A.2d 738 (Pa. Cmwlth. 1993) support the UCBR's decision. In Kelley, the Court relied on the balancing test established in Boyer v. Unemployment Compensation Board of Review, 454 A.2d 524 (Pa. 1982), wherein, the Court noted that "[e]ach case of this type must be weighed on its own facts to determine whether, in light of his responsibility of loyalty to his employer, the employee acted justifiably and reasonably." Kelley, 466 A.2d at 1147.
In Kelley, the claimants, husband and wife, were employed in a group home that provided residential and treatment services to mentally disabled Montgomery County residents under a contract between Pan Am (employer) and the county. In the course of their employment, the claimants observed conditions which led them to conclude that residents were not receiving adequate care and treatment. Among the conditions which allegedly concerned them were inadequate food and medication. The claimants protested these conditions to their immediate supervisor and to their project director, who was the highest ranking company employee with whom they had ever had any direct communication. When their protests failed to achieve satisfactory results, the claimants wrote a letter in which they described conditions in the group-home which they felt compromised the well-being of the residents. The letter was addressed to the Montgomery County agency responsible for placement of the mentally retarded; to the Special Master in a federal court action involving standards of treatment and disposition of mentally retarded patients in the Pennhurst State School and Hospital; to counsel for the Association of Retarded Citizens; and to the sister-in-law and legal guardian of one of the group-home residents. The employer's president learned of the claimants' allegations regarding conditions at the group home when he received a copy of the letter from Montgomery County welfare officials. Two days later, the claimants were discharged. The Kelley Court found that the claimants' actions did not rise to the level of willful misconduct because the claimants attempted to resolve their concerns internally, sent letters only to those who had an official or legal interest in their concerns, and did not have motives tainted by malice or indifference.
In Goodwill, however, the claimant was a truck helper and occasional driver for Goodwill Industries (employer). The claimant was dissatisfied with certain procedures the employer used in the conduct of its business. While off duty, the claimant composed a flyer in which he stated his opinion regarding the employer's practices and circulated 500 of the flyers to the public. The Goodwill Court found that the claimant's actions constituted willful misconduct because although the claimant scheduled a meeting with his employer to discuss his concerns, the claimant did not attend the meeting. Moreover, instead of distributing flyers to those who could help the claimant, he distributed flyers to the public-at-large, thereby showing the claimant was at best, indifferent to the employer.
Here, according to the UCBR's findings, Claimant told Employer she wanted her old bus route back because the bus on her new route hurt her back, but told the students' parents she was concerned for the students. By not addressing her concern for the students to her Employer before going to the parents, Claimant showed at best, indifference to Employer. Thus, her conduct did rise to the level of willful misconduct.
Claimant's actions in the instant case are more analogous to the claimant's actions in Goodwill, and clearly distinguishable from the claimants' actions in Kelley. Accordingly, I believe the UCBR's order should be reversed.
/s/_________
ANNE E. COVEY, Judge Judge Brobson did not participate in the decision in this case.