Opinion
No. 811 C.D. 2012
12-21-2012
John E. Rife, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
John E. Rife (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board) denying his claim for benefits under Section 402(e) of the Unemployment Compensation Law (Law) (relating to willful misconduct). Claimant assigns error in the determination that violating a verbal directive rose to the level of willful misconduct. Alternatively, Claimant asserts he had good cause for violating the directive. We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e).
Claimant worked for Cauley Detective Agency (Employer) as a security guard assigned to the Pennsylvania Higher Education Assistance Agency (PHEAA). After his suspension from employment and removal from PHEAA, Claimant applied for unemployment compensation. The local service center denied benefits. Claimant appealed, and a hearing ensued before a referee.
At the hearing, Claimant was represented by counsel, and he testified on his own behalf. Four witnesses for Employer also testified. The referee affirmed the denial of benefits based on willful misconduct. Claimant appealed to the Board.
On appeal, the Board made the following findings. On October 20, 2011, Claimant reported to his supervisor, Vadim Basov, (Supervisor) that another security officer struck him the previous day. Bd. Op., 4/19/12, Finding of Fact (F.F.) No. 5. Supervisor advised Claimant to seek medical attention. F.F. No. 6. Claimant advised Supervisor that an employee of PHEAA, Jamie Rivera, witnessed the incident, and Claimant intended to speak with her about the incident. F.F. No. 7. Supervisor told Claimant not to contact Rivera or any other witnesses regarding the incident while it was under investigation. F.F. No. 8.
Supervisor also testified Employer has a policy against contacting witnesses during investigations, and that Claimant signed an acknowledgement of this policy. Reproduced Record (R.R.) at 52a.
Claimant later told a co-worker that he sent text messages to Rivera to "get her to tell the truth" and showed his co-worker the cell phone with the text message. F.F. Nos. 9-10. Claimant also considered speaking with Rivera's military recruiter to delay her scheduled deployment so she would be present for the investigation. F.F. No. 11.
The Board explained in its opinion that Employer's President, James Cauley, directed Claimant not to contact any potential witnesses in light of Employer's investigation of the alleged incident. Bd. Op. at 3. PHEAA requested that Employer remove Claimant from the site based on his contact with PHEAA employees. F.F. No. 12. Employer removed Claimant from his assignment at PHEAA and suspended him on November 9, 2011, for contacting PHEAA employees about the investigation. F.F. No. 13.
Based on these findings, the Board issued a decision and order affirming the referee's decision under Section 402(e) of the Law. In its decision, the Board explained it found credible Employer's evidence that Claimant texted Rivera about the investigation despite Employer's directives. Claimant now petitions for review.
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).
The Board is the ultimate fact-finder in unemployment compensation matters and is empowered to resolve all conflicts in evidence, witness credibility, and weight accorded to the evidence. Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338 (Pa. Cmwlth. 2008). The party prevailing before the Board "is entitled to the benefit of all reasonable inferences drawn from the evidence." Id. at 342.
Section 402(e) of the Law provides, "[a]n employe shall be ineligible for compensation for any week ... [i]n which his unemployment is due to his discharge ... from work for willful misconduct connected with his work ...." 43 P.S. §802(e). "Willful misconduct" is "behavior evidencing a wanton or willful disregard of the employer's interests; a deliberate violation of the employer's work rules; a disregard of standards of behavior the employer can rightfully expect from its employee; [or], negligence indicating an intentional disregard of the employer's interest or an employee's duties or obligations." Dep't of Corr. v. Unemployment Comp. Bd. of Review, 943 A.2d 1011, 1015 (Pa. Cmwlth. 2008).
The employer bears the initial burden of proving a claimant engaged in willful misconduct. Ductmate. When asserting misconduct due to a violation of a work rule, an employer must establish existence of the rule and its violation. Id. Whether a claimant's conduct rises to the level of willful misconduct is a question of law fully reviewable on appeal. Caterpillar, Inc. v. Unemployment Comp. Bd. of Review, 550 Pa. 115, 703 A.2d 452 (1997).
If an employee knows of a work rule and intentionally disregards it, such conduct is more akin to disobedience of a direct instruction than inadvertence or negligence. Heitczman v. Unemployment Comp. Bd. of Review, 638 A.2d 461 (Pa. Cmwlth. 1994). Further, an employer's directive need not be written in order to support a determination that an employee's violation of the directive constitutes willful misconduct. Graham v. Unemployment Comp. Bd. of Review, 840 A.2d 1054 (Pa. Cmwlth. 2004). An employer may reasonably expect that its employees will follow its verbal directives. Id.
As to the work rule here, Claimant received directions on two separate occasions, from two superiors, not to communicate with a witness from PHEAA. See Bd. Op. at 3. When Claimant advised Supervisor that he intended to speak with Rivera, Supervisor responded, "You cannot do it." Reproduced Record (R.R.) at 50a, 52a; see also F.F. No. 8. Subsequently, Employer's President told Claimant that he could not contact any witnesses with regard to the investigation. Employer later received a complaint from PHEAA that Claimant was harassing its employees, namely Rivera. As a consequence, Claimant was suspended.
Substantial evidence supports the Board's findings that Claimant was directed not to contact PHEAA employees, and he violated that directive. Claimant does not deny that he texted Rivera, and we agree with Employer that the directive against contacting witnesses should have been reasonably understood to include texting.
Claimant raises questions about the timing of his actions. In particular, he argues the Board erred in finding he committed misconduct because he worked only two days after Employer's President advised him not to contact witnesses, and there is no evidence he sent the texts during those two days. However, Claimant ignores the testimony of Supervisor and of his co-worker about texts he sent to Rivera after Supervisor's directive. Thus, the Board's determination that Claimant violated a known directive is supported regardless of when Employer's President directed Claimant.
Claimant recognizes in his brief that the "explanation for the directive is that contact by [Claimant] with PHEAA employees 'would be viewed by the client (PHEAA) as trying to influence the investigation.' [R.R. at] 30a." Pet'r's Br. at 18. Given that Employer provides security for its client PHEAA, and had a policy against interfering in ongoing investigations, Employer's directive was reasonable.
As to evidence of a violation of the work rule, texting a witness in an ongoing investigation violated the directive. Although Claimant does not dispute that he texted Rivera, Claimant contends he was suspended not for violation of Employer's directive, but because PHEAA requested his removal from the job site. This is a distinction without a difference. Had Claimant complied with Employer's directives, PHEAA would not have needed to intervene on behalf of its employees.
The Board found credible Employer's evidence that Claimant texted Rivera regarding the investigation after Supervisor directed Claimant not to contact her. The directive was clear that Claimant was not to contact Rivera or other witnesses, particularly PHEAA employees, regarding the investigation.
Our inquiry does not end here, however, as we must consider whether Claimant's violation was justifiable or reasonable under the circumstances. Eshbach v. Unemployment Comp. Bd. of Review, 855 A.2d 943 (Pa. Cmwlth. 2004). The claimant bears the burden to show good cause for violating a directive. City of Williamsport v. Unemployment Comp. Bd. of Review, 560 A.2d 312 (Pa. Cmwlth. 1989).
Claimant contends his conduct in texting Rivera was justifiable as he needed to secure her testimony to support a workers' compensation claim. He also asserts the Board did not render any findings regarding this contention. Claimant further argues his testimony differed from Employer's President regarding his contact with PHEAA employees.
The Board specifically stated "[t]he employer's president and his supervisor both credibly testified that they individually directed the claimant not to contact PHEAA employees regarding the incident under investigation." Bd. Op. at 3. The Board thus implicitly rejected Claimant's conflicting testimony. We cannot revisit or disregard the Board's credibility determinations. Ductmate. Our review of the testimony supports the Board's determination.
Contrary to Claimant's depiction, Employer did not preclude Claimant from filing a workers' compensation claim. Employer directed Claimant not to contact its client's employees because it had a concern that the client would object. The client objected, and it requested Employer to remove Claimant from the job site. Based on the call from the client for removal, Employer told Claimant "given this request do NOT report for work." R.R. at 14a. As these material facts are not disputed, we discern no error below.
Although Claimant is correct that the Board did not make any findings regarding Claimant's alleged investigation of his potential workers' compensation claim as justification for the violation, we do not fault the Board for this omission. Claimant did not clearly specify in his appeal to the Board that he had good cause for violating Employer's directive. R.R. at 74a-75a; see also Certified Record, Item No. 14. Rather, Claimant contended he did not commit the alleged misconduct and challenged the reasonableness of the directive. Accordingly, he did not put the Board on notice of that argument. Moreover, there is no evidence other than Claimant's testimony to support such a claim. By implication, the Board did not find Claimant's testimony credible. In addition, we agree with Employer that the act of filing a workers' compensation claim does not necessitate Claimant's independent investigation of the claim.
We note Claimant commented that his subsequent termination from Employer on grounds of filing a false workers' compensation claim pertains to a separate unemployment compensation claim not now before this Court. R.R. at 75a. --------
Claimant resented his exclusion from Employer's investigation of the incident. He thus took steps to conduct his own investigation despite Employer's directive prohibiting that conduct. As he did not establish a reasonable justification for doing so, the Board reached the correct result here.
For the foregoing reasons, we affirm the Board.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 21st day of December, 2012, the order of the Unemployment Compensation Board of Review is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge