Opinion
No. 614 C.D. 2011
02-03-2012
Frank Smolinsky, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
This case was assigned to the opinion writer on or before January 6, 2012, when President Judge Leadbetter completed her term as President Judge.
Frank Smolinsky (Claimant) petitions pro se for review of the March 8, 2011, order of the Unemployment Compensation Board of Review (Board), affirming the decision of a referee that Claimant was 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 compensation for any week in which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work.
Claimant was employed as a roll off container driver by JP Mascaro and Sons (Employer) from May 29, 2007, through June 30, 2010. Employer maintains a policy which prohibits offensive behavior. Claimant was, or should have been, aware of this policy. On June 30, 2010, Helen Kaltenbach (Kaltenbach), Employer's dispatcher, informed Claimant of his assignments for the day. Claimant told Kaltenbach that he would not perform one of the assignments because it was too much work. Kaltenbach advised Claimant to discuss the matter with the general manager who had made the assignment. Thereafter, Claimant refused to answer calls from Kaltenbach on his company cell phone. Upon his return to the work location, the general manager discharged Claimant for failing to perform his assignment and for making himself unavailable when contacted by Kaltenbach. Following his discharge, Claimant confronted Kaltenbach and directed profanity towards her. (Findings of Fact Nos. 1-10.)
The referee incorrectly stated in his findings of fact that Claimant began working for Employer on May 29, 2010. The record indicates that Claimant started working for Employer on May 29, 2007.
The referee mistakenly references this date as June 13, 2010, in the reasoning section of his decision.
Claimant filed a claim for benefits with the Allentown Unemployment Compensation Service Center (Service Center), which determined that Claimant was not ineligible for benefits under section 402(e) of the Law. The Service Center concluded that Employer failed to meet its burden of establishing that Claimant was insubordinate. Employer appealed, and the case was assigned to a referee for a hearing.
Claimant testified that he began working for Employer on May 29, 2007, initially full-time and later part-time, three days a week. Claimant indicated that he was paid by the day for emptying containers. Claimant stated that he was discharged from his employment on June 30, 2010. Claimant acknowledged that he was aware that employees were required to fulfill their assignments. However, Claimant explained that, on the day of his discharge, Kaltenbach provided him with two assignments to be completed, including a ten-yard placement in Trexlertown, after he was finished with an assignment to empty containers filled with yard waste for South Whitehall Township. Moreover, Claimant denied speaking to Kaltenbach this day; instead, Claimant indicated that he retrieved the assignments from a drawer downstairs in a driver's room. Claimant specifically denied ever telling Kaltenbach that he would not perform the assignment in Trexlertown. (N.T. at 4-5, 11-12.)
Claimant noted that Employer had a five-year contract with South Whitehall Township for removal of this yard waste. (N.T. at 11.)
Claimant testified that he maintained communications with Kaltenbach throughout the day on June 30, 2010. In fact, Claimant indicated that he had to call Kaltenbach several times because of missing containers and the lack of an address. Claimant further indicated that he was informed by Kaltenbach to stop working with the yard waste and proceed with the Trexlertown assignment, which he alleged he did. However, Claimant said that he could not fulfill this assignment because his truck broke down and had to be towed. Claimant stated that upon his return to the garage, he was confronted by Employer's general manager, who demanded Claimant's company cell phone and told him in a profanity-laced rant that he was fired. Claimant testified that on the way out, he passed by Kaltenbach and informed her that he was fired. Claimant denied confronting Kaltenbach or directing profanity towards her. (N.T. at 12-14.)
Kimberly Missmer, Employer's office manager, testified that Claimant was discharged because he refused to perform his assigned work and failed to keep in contact with Employer throughout the day. Missmer stated that upon his return to the office on June 30, 2010, Claimant had an outburst in which he was extremely disrespectful to Kaltenbach. Missmer explained that Employer maintains a policy prohibiting offensive behavior, a policy which is included in the Employer's handbook provided to Claimant at his orientation. Missmer stated that she personally heard Claimant yelling at Kaltenbach, complaining that Kaltenbach was the reason he was fired and that she was incapable of performing her job. Missmer further testified that Claimant called Kaltenbach a derogatory name. Missmer acknowledged, however, that this behavior occurred after Claimant's termination. (N.T. at 5-6.)
Kaltenbach testified that on the morning of June 30, 2010, Claimant refused to perform one of his work assignments, namely, the placement of a ten-yard container at a job site in Trexlertown. Kaltenbach stated that Claimant informed her that he was only part-time and did not have to do so much work. Kaltenbach advised Claimant that the assignments had been approved by the general manager and to contact the general manager if he needed to discuss the matter. Kaltenbach indicated that she made at least ten attempts to reach Claimant on his company cell phone throughout the day, but was unsuccessful. Kaltenbach thereafter advised the general manager of the situation. Kaltenbach testified that later that afternoon, she heard Claimant having a very loud conversation with the general manager, after which Claimant confronted her and directed profanity towards her. (N.T. 7-10.)
Ultimately, the referee reversed the decision of the Service Center and found that Claimant was ineligible for benefits under section 402(e) of the Law. The referee noted the conflicting testimony presented by Claimant and Employer's witnesses and specifically credited the latter. The referee concluded that Claimant violated Employer's policy prohibiting offensive behavior by committing acts of insubordination, i.e., failing to complete his assignments and refusing to answer calls on his company cell phone. Claimant appealed to the Board, which affirmed the referee's decision and adopted the referee's findings and conclusions.
On appeal to this Court, Claimant argues that the Board's findings are not supported by substantial evidence and that the Board erred in concluding that his actions constituted willful misconduct. We disagree.
Our scope of review is limited to determining whether constitutional rights were violated, whether an error of law was committed or whether necessary findings of fact are supported by substantial evidence. Shrum v. Unemployment Compensation Board of Review, 690 A.2d 796 (Pa. Cmwlth.), appeal denied, 548 Pa. 663, 698 A.2d 69 (1997). Furthermore, the Board's findings of fact are conclusive on appeal so long as the record, taken as a whole, contains substantial evidence to support those findings. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 378 A.2d 829 (1977). Substantial evidence is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Brown v. Unemployment Compensation Board of Review, 854 A.2d 626 (Pa. Cmwlth. 2004).
Although the Law does not define willful misconduct, it has been construed by our Court as: (1) the wanton or willful disregard of the employer's interests; (2) the deliberate violation of the employer's rules/directives; (3) the disregard of the standards of behavior which an employer can rightfully expect from an employee; and (4) negligence demonstrating an intentional disregard of the employer's interest or the employee's duties and obligations. Kelly v. Unemployment Compensation Board of Review, 747 A.2d 436 (Pa. Cmwlth. 2000). The employer bears the burden to prove that a discharged employee was guilty of willful misconduct. Gillins v. Unemployment Compensation Board of Review, 534 Pa. 590, 633 A.2d 1150 (1993).
Whether or not an employee's actions amount to willful misconduct is a question of law subject to review by this Court. Noland v. Unemployment Compensation Board of Review, 425 A.2d 1203 (Pa. Cmwlth. 1981).
In the present case, Claimant relies on his own testimony concerning the events leading up to his termination in support of his argument that he did not commit willful misconduct. However, the Board chose not to accept Claimant's testimony as credible. 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. Oliver v. Unemployment Compensation Board of Review, 5 A.3d 432 (Pa. Cmwlth. 2010). Findings of fact are conclusive on appeal where the record, taken as a whole, provides substantial evidence to support the findings. Id. Here, the testimony of Missmer and Kaltenbach constitutes substantial evidence to support the Board's findings that Claimant refused to perform an assignment and refused to answer his company cell phone, Findings of Fact Nos. 5, 8, and Claimant offered no credible justification for his conduct. Thus, the Board did not err in concluding that Claimant was ineligible for benefits pursuant to section 402(e) of the Law. See American Racing Equipment, Inc. v. Unemployment Compensation Board of Review, 601 A.2d 480 (Pa. Cmwlth. 1991) (holding that the claimant's refusal of a work assignment evidenced an open disregard of the employer's reasonable expectations and constituted willful misconduct); Kretsch v. Unemployment Compensation Board of Review, 476 A.2d 1004 (Pa. Cmwlth. 1984) (holding that the claimant's refusal of a reasonable work request evidenced a disregard of the standards of behavior that the employer could expect of an employee and constituted willful misconduct).
We note that whether or not Claimant violated Employer's policy against offensive behavior, the record supports the Board's determination that Claimant acted insubordinately in failing to complete his assignments and refusing to answer calls on his company cell phone, thereby disqualifying Claimant from receipt of benefits under section 402(e). See, e.g., Royster v. Unemployment Compensation Board of Review, ___ A.3d ___ (Pa. Cmwlth., No. 2569 C.D. 2010, filed December 27, 2011) (holding that even if the Board had not found that the claimant had violated a work rule of the employer, the record supported the Board's determination that the claimant acted intentionally and recklessly, which was directly inimical to the employer's best interests and rendered the claimant ineligible for benefits under section 402(e)). --------
Accordingly, the order of the Board is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 3rd day of February, 2012, the order of the Unemployment Compensation Board of Review, dated March 8, 2011, is hereby affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge