Opinion
No. 2340 C.D. 2012
08-22-2013
Barbara E. Spangler, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Barbara E. Spangler (Claimant) petitions for review of the order of the Unemployment Compensation Board of Review (Board), affirming the decision of a Referee that Claimant is ineligible for unemployment compensation 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, in pertinent part: "An employe shall be ineligible for compensation in any week ... (e) [i]n which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work, irrespective of whether or not such work is 'employment' as defined in this act."
Claimant filed a claim for unemployment compensation benefits after the termination of her employment as a receptionist for Lincoln Technical Institute (Employer). The UC Service Center concluded that Claimant had been discharged for reasons that constitute willful misconduct under Section 402(e) of the Law, for going through an admissions representative's desk drawer in violation of Employer's directive, which prohibits employees from entering an office when its occupant is not present. (Record Item (R. Item) No. 4, Notice of Determination, July 12, 2012.) As a result, unemployment compensation benefits were denied.
Claimant appealed this determination and a hearing was conducted before a Referee. (R. Item No. 12, Referee's Hearing, Transcript of Testimony (H.T.), August 28, 2012.) At the hearing, Employer's Executive Director testified. Claimant, represented by counsel, also testified.
On August 29, 2012, the Referee issued a decision, finding that Claimant deliberately disregarded a reasonable directive of Employer, and that her conduct indicated a disregard of the standards of behavior that an employer has a right to expect of an employee. (R. Item 13, Referee's Decision.) The Referee made the following relevant findings of fact. Claimant worked as a full-time receptionist, from August 24, 1998 until June 21, 2012, at a final rate of pay of $17.81 per hour. (R. Item 13, Referee's Decision, Findings of Fact (F.F.) ¶ 1.) Employer has a Progressive Discipline Policy under which an employee is first given a verbal warning; the next infraction leads to a written warning, the third infraction leads to the development of an "Employee Success Plan" laying out necessary employee actions, with target dates and follow-up measures, and the final step is discharge from employment. (F.F. ¶ 2.) Employer has the right to skip any steps in the progression if the conduct merits doing so, and Claimant was aware, or should have been aware, of Employer's policies and rules. (F.F. ¶¶ 3-4.)
In February 2012, funds went missing from the Employer's business office during the relevant period of time, an investigation was conducted, and surveillance video footage showed that Claimant and three other employees had entered the business office; each employee, including Claimant, was individually shown the portion of the video footage where he or she could be seen entering the business office. (F.F. ¶¶ 5-7.) Employer then orally issued a directive to Claimant, as well as to the other employees, that they were prohibited from entering another employee's office if it was not occupied. (F.F. ¶¶ 8-9.)
On June 20, 2012, while most of the staff was involved in a meeting, Claimant was observed entering another office, an admissions representative's office; when the Executive Director spoke with Claimant regarding her actions, Claimant admitted that she had been in that office, and stated that she went in to find a pen. (F.F. ¶¶ 10-12.) Employer keeps business supplies in the business office area, in an open space with people present, located adjacent to Claimant's receptionist desk; however, Claimant chose to go to the admissions office, which is located some distance from Claimant's desk. (F.F. ¶ 13-15.) After suspending Claimant for the day, Employer called Claimant back into the office on the following day, questioned her about her knowledge of the directive prohibiting entry into unoccupied offices, and terminated her from employment. (F.F. ¶ 17.) Claimant did not file a grievance with Employer's Corporate Office. (F.F. ¶ 18.)
Claimant appealed from the Referee's decision and, in its decision and order dated November 8, 2012, the Board adopted and incorporated the Referee's findings and conclusions. (R. Item No. 17, Board's Order.) The Board further discussed in detail its determination that Employer's witness' credible testimony was sufficient to establish the existence of Employer's "policy, its provision allowing for immediate termination depending upon the severity of the situation, the content of the directive, and the [C]laimant's intentional violation of the directive." (Id.)
Where a claimant is discharged for violation of a work rule, both the reasonableness of the employer's policy and the reasonableness of a claimant's refusal must be examined. Frumento v. Unemployment Compensation Board of Review, 351 A.2d 631, 634 (Pa. Cmwlth. 1976). The employer has the initial burden of establishing that the rule was reasonable, and the burden then shifts to the claimant to establish good cause for refusing to comply. Rung v. Unemployment Compensation Board of Review, 689 A.2d 999, 1001 (Pa. Cmwlth. 1997). The Referee noted that at the hearing, Employer's witness testified that he had personally given Claimant the directive that no employee was to enter the office of another employee if that office was unoccupied. (R. Item 13, Referee's Decision, Reasoning.) The Referee further noted that Claimant defended her action of entering the unoccupied office of one of the admissions representatives by stating that she needed a pen to administer a test, and the Referee reasoned that Claimant's testimony was not persuasive, as Claimant could have gotten the supplies from the office located in an open area that was not restricted to her. (Id.)
On appeal to this Court, Claimant argues that the Board erred in concluding that Claimant committed willful misconduct where Employer did not follow its own progressive disciplinary policy before terminating her employment. Claimant cites this Court's decisions in Frigm v. Unemployment Compensation Board of Review, 642 A.2d 629 (Pa. Cmwlth. 1994), PMA Reinsurance Corporation v. Unemployment Compensation Board of Review, 558 A.2d 623 (Pa. Cmwlth. 1989), and Looney v. Unemployment Compensation Board of Review, 529 A.2d 612 (Pa. Cmwlth. 1987), for the rule that "an employee's conduct cannot be considered willful misconduct for unemployment compensation purposes when the employer has not adhered to its own progressive disciplinary system in discharging the employee." Frigm, 642 A.2d at 634; see also PMA Reinsurance, 558 A.2d at 626; Looney, 529 A.2d at 614. Each of the cases cited by Claimant are distinguishable from the situation presented here, where Claimant's employment was terminated for violation of a directive instituted following a serious breach of security at the workplace. Both Looney and PMA Reinsurance were cases involving the termination of employment of employees who had violated their respective employers' specific policies regarding absenteeism and tardiness; in PMA Reinsurance, the employer used a progressive accumulated point-system. In neither case is there any indication of policy language permitting the employer discretion to depart from the progressive discipline policy under given circumstances. Conversely, Frigm involved an employee's breach of a rule regarding confidentiality, and in that case the Court ruled that employer had appropriately followed its progressive discipline policy because "[a]lthough [the employer] has a progressive disciplinary system for minor employee misconduct, [the employer's personnel policy] also provides that a serious offense may warrant immediate discharge." Frigm, 642 A.2d at 634.
Our review is limited to determining whether the Board's adjudication is in violation of constitutional rights, whether an error of law was committed, or whether the factual findings are supported by substantial evidence. 2 Pa. C.S. § 704; Nolan v. Unemployment Comp. Bd. of Review, 797 A.2d 1042, 1045 n.4 (Pa. Cmwlth. 2002).
Here, Claimant argues that no competent evidence was offered that there were exceptions to Employer's progressive discipline policy allowing for immediate discharge from employment. We disagree. The Executive Director outlined the various steps of Employer's progressive discipline policy, and he testified as to Employer's policy with regard to the conditions under which an employee may be subject to immediate discharge from employment:
Claimant also states that Employer's Executive Director and Claimant disagreed as to the nature of the directive. The Executive Director testified that the directive prohibited employees from entering any unoccupied office. (H.T. at 6.) Claimant testified that she believed that the directive prohibited her from entering the business office when unoccupied, but permitted entry into an unoccupied admissions representative's office, and she stated that she did so on a regular basis even after the February 2012 meeting when the directive was announced. (H.T. at 14, 16.) As discussed below, the Board found the Executive Director's testimony to be credible, and that finding is binding on this Court.
[Claimant's Counsel]: How many would you say there are, intermediate steps, prior to, prior to discharge?(H.T. at 11.)
[Executive Director]: It depends on the situation. If somebody for instance, their paperwork was wrong, we'd go with the verbal warning, or if there was lateness or absences, we might give them a written warning. For direct violations of rules and regulations, we don't need that, those three steps.
[Claimant's Counsel]: So as far as you're concerned, this policy allows for immediate termination for any direct violation?
[Executive Director]: Yes, sir.
[Claimant's Counsel]: Irrespective of any Progressive Discipline?
[Executive Director]: That is correct.
The Executive Director testified that after a large sum of money was discovered to be missing from a safe located in the office of the Director of Administrative Services, an investigation was conducted, and surveillance tapes revealed that four employees had entered the office during the time period that the money disappeared; each employee was called separately into a meeting with the Executive Director and the Human Resources Director, shown the tapes, and asked to explain why they were in that office at that time. (H.T. at 5-6.) The Executive Director testified that the investigation into the theft was inconclusive; after the incident, Employer determined to tighten up security at the workplace, and the directive prohibiting entry into unoccupied offices was one of the measures taken to do so. (H.T. at 11.) He stated that at the meeting with Claimant in February 2012, she was given the new directive that no employee should ever enter any unoccupied office. (H.T. at 6.) After he received information that, several months later, Claimant entered the office of one of the admissions representatives, the Executive Director first contacted the Human Resources Director and then called Claimant into his office and sent her home for the day. (H.T. at 7.) On the following day, he met with her again and at that time, Claimant agreed that she had entered the office, and stated that she had done so in an attempt to find a pen. (H.T. at 22.) The Executive Director testified that he asked Claimant directly if she remembered being instructed not to enter any unoccupied office, and she replied "yes." (H.T. at 14.) Claimant's employment was thereupon terminated.
In its Decision/Order, the Board stated:
[Employer's Executive Director] credibly testified that (a) the employer's progressive discipline policy allows for the skipping of steps depending on the severity of the infraction; (b) the directive issued in February extended to admissions staff offices; and (c) when confronted, the
claimant admitted that she was directed in February not to enter a locked personnel office. Contrary to the claimant's argument on appeal, it was not necessary for the employer to provide evidence of the policy or the directive. [Executive Director]'s credible testimony was sufficient to establish the existence of the policy, its provision for allowing for immediate termination depending on the severity of the situation, the content of the directive, and the claimant's intentional violation of the directive.(R. Item 17, Board's Order.) In an unemployment compensation case, the Board is the ultimate fact finder and is, therefore, entitled to make its own determinations as to witness credibility and evidentiary weight. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 272, 501 A.2d 1383, 1386 (1985). The Board is also empowered to resolve conflicts in the evidence. DeRiggi v. Unemployment Compensation Board of Review, 856 A.2d 253, 255 (Pa. Cmwlth. 2004).
Claimant objects to assertions in the Board's brief that Claimant was observed entering a locked personal office, going through the office occupant's purse and desk; Claimant asserts there is no record support for such statements, since testimony from the Employer's witness regarding what another employee observed was objected to as hearsay, and the objection was sustained by the Referee. In its Decision/Order, the Board stated that the Executive Director had credibly testified that when confronted, Claimant admitted that she had been directed not to enter a "locked personal office;" the Board also stated that Claimant "entered a locked personal office of an admissions representative and was looking through a desk drawer, thereby violating the directive issued in February and impacting the security of the workplace." (R. Item 17, Board's Order.)
Contrary to Claimant's assertion, there is ample record support for the Board's finding that Claimant entered a locked office. Claimant's counsel asked the Executive Director if, when he spoke to Claimant on the date of her discharge from employment, he asked Claimant whether she had to unlock the admissions representative's office in order to get in, and he replied, "She -yes. It was -she would, yes. She said it was locked and she had a key." (H.T. at 12-13.) Claimant is correct in stating that there is no evidence that Claimant was going through a purse. That, however, is irrelevant to the Board's decision. There is no finding, in either the Referee's or the Board's decision, that Claimant was looking through a purse. The Board accepted as credible the testimony of Employer's witness that Claimant was discharged from her employment for violation of the directive not to enter an unoccupied office; the lack of record evidence as to whether she was looking through a desk drawer after she entered the office is inconsequential.
In a footnote, Claimant states that both the Referee and the Board found it noteworthy that Claimant did not file a grievance with Employer's Corporate Office, and posits that the Board should not have considered this fact in deciding the case. (Claimant's Brief at 10, n.3.) The Board noted at the conclusion of its Decision/Order that Claimant's testimony concerning her failure to file a grievance was inconsistent and served to impeach the credibility of her argument that she did not violate Employer's policy. We find Claimant's argument to be without merit, since neither the Referee's finding of fact regarding the grievance nor its mention by the Board can be seen as necessary to the disposition to the case.
F.F. ¶18 states: "The claimant did not file a grievance with the Corporate Office, the Human Resources Department, or the Executive Director's Supervisor." (R. Item 13, F.F. ¶18.) The Board stated:
[t]he Referee did not err in considering that the claimant failed to file a grievance with the employer's corporate office, human resources department, or the executive director's supervisor or in discrediting claimant's testimony denying that she was aware of the opportunity to file a grievance. The claimant gave inconsistent testimony, first asserting that she was unaware of any grievance opportunity, then stating that she could have appealed the determination to the employer's corporate office. The claimant's decision not to challenge the discharge impeaches the credibility of her argument denying that her behavior violated the employer's policy.
The Board correctly concluded that Claimant committed willful misconduct in connection with her work, in accordance with Section 402(e) of the Law, and Employer offered competent and credible testimony that Claimant's actions constituted a violation of its reasonable directive, and provided grounds for immediate discharge from employment. The Board's order denying benefits is affirmed.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 22nd day of August, 2013, the order of the Unemployment Compensation Board of Review in the above matter is affirmed.
/s/_________
JAMES GARDNER COLINS, Senior Judge
(R. Item 17, Board's Decision.)