Opinion
No. 1536 C.D. 2014
04-14-2015
Walter J. Westhead, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Walter J. Westhead (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board) denying him unemployment compensation (UC) benefits under Section 402(e) of the UC Law (Law). Claimant contends the Board erred in determining he committed willful misconduct because he performed his job to the best of his ability, and the record contains no evidence of any misconduct on his part. Rather, Claimant asserts his failure as a reverse mortgage advisor to meet his former employer's productivity goals resulted from circumstances beyond his control, including his wife's disability, his employer's decision to no longer provide him with sales leads, and a deteriorating housing market. Given the Board's fact-finding, we are constrained to 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 states an employee shall be ineligible for compensation for any week in which his unemployment is due to willful misconduct connected to his work.
I. Background
The Board adopted the following findings made by the referee in this case. Claimant worked for Liberty Home Equity Solutions (Employer) as a full-time reverse mortgage advisor from July 2010 until his last day of work in April 2014. As a reverse mortgage advisor, Employer expected Claimant to secure a minimum of two new applications per month. Employer informed Claimant of its productivity expectations.
In July 2013, Employer placed Claimant on a performance improvement plan after he failed to meet the minimum requirements over a three-month period. In response, Claimant requested that Employer provide him with sales leads given Claimant's wife's medical condition. Employer informed Claimant that it never guaranteed a lead flow to any advisor. Employer also advised Claimant that it expected him to supplement any leads it provided with self-generated leads.
Nonetheless, Employer accommodated Claimant with respect to his wife's medical condition. In particular, Employer permitted Claimant to work from home. Employer also provided Claimant with flexible working hours. Claimant also received help from his daughter and an outside agency in caring for his wife.
In January 2014, Employer placed Claimant on a performance improvement plan for two months. At that time, Employer informed Claimant it expected him to secure two new applications per month in February and March. Claimant again responded by requesting that Employer provide him more leads. Employer again advised Claimant that leads cannot be guaranteed for any employee. In addition, Employer again indicated to Claimant that it expected him to generate some leads on his own.
However, Claimant failed to secure any new applications in either February or March 2014. Thereafter, Employer discharged Claimant for lack of productivity.
After his separation from employment, Claimant filed for UC benefits. In April 2014, the local UC service center issued a notice of determination ruling Claimant ineligible for benefits under Section 402(e) of the Law. The service center found that Employer warned Claimant about his unsatisfactory work performance, and that Claimant did not work to the best of his ability. See Reproduced Record (R.R.) at 1a.
Claimant appealed, and the Board scheduled a referee's hearing. Represented by counsel, Claimant testified on his own behalf. After the hearing, the referee issued a decision holding Employer discharged Claimant for willful misconduct in connection with his work. In so doing, the referee reasoned (with emphasis added):
In the present case, the competent evidence contained in the hearing record establishes [Claimant] was discharged from employment for lack of productivity. The Referee finds competent evidence in the record to establish [Claimant] was placed on performance improvement plans during the course of his employment, due to
[Claimant's] failure to meet [Employer's] minimum expectations of securing two new applications per month. Specifically, the Referee finds the month of February and the month of March 2014, [Claimant] secured zero applications for both months. The Referee further credits [Employer's] testimony that [Claimant] had exhibited the ability to meet the minimum expected standards in the past.Referee's Dec., 5/23/14, at 2-3.
* * * *
Furthermore, because of the significant emphasis [Claimant] placed on [Employer's] failure to provide leads to him in accordance with his request, the Referee rejects [Claimant's] testimony as not credible as to the other alleged steps [Claimant] took in order to secure the applications as expected. In fact, the Referee finds [Claimant] offered no competent evidence to establish he took any other steps other than making requests for accommodations in furtherance of meeting [Employer's] minimum expectations.
As such, the Referee finds [Claimant] did not meet [Employer's] standards, and the Referee does not find sufficient evidence in record to support the conclusion that [Claimant's] failure to meet [Employer's] expectations was truly beyond his control or due to any type of inability or inexperience on [Claimant's] part. Therefore, [Employer] has met its burden of proof and benefits are denied.
Claimant appealed. The Board affirmed the referee's decision and adopted its findings and conclusions. Importantly, the Board also concluded that Claimant "did not work to the best of his ability to generate leads ...." Bd. Dec., 8/22/14, at 1. Claimant 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. Doyle v. Unemployment Comp. Bd. of Review, 58 A.3d 1288 (Pa. Cmwlth. 2013). Substantial evidence is evidence which a reasonable mind would accept as adequate to support a conclusion. Umedman v. Unemployment Comp. Bd. of Review, 52 A.3d 558 (Pa. Cmwlth. 2012).
II. Discussion
A. Willful Misconduct
Willful misconduct is defined by the courts as: (1) wanton and willful disregard of an employer's interests; (2) deliberate violation of rules; (3) disregard of the standards of behavior which an employer can rightfully expect from an employee; or, (4) negligence showing an intentional disregard of the employer's interests or the employee's duties and obligations. Grieb v. Unemployment Comp. Bd. of Review, 827 A.2d 422 (Pa. 2002). The employer bears the initial burden of establishing a claimant engaged in willful misconduct. Id. Whether a claimant's actions constitute willful misconduct is a question of law fully reviewable on appeal. Id.
B. Board's Province as Fact-Finder
We also note the Board is the ultimate fact-finder in UC cases and is empowered to resolve all issues of witness credibility, conflicting evidence and evidentiary weight. Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338 (Pa. Cmwlth. 2008). Also, it is irrelevant whether the record includes evidence that would support findings other than those made by the Board; the proper inquiry is whether the evidence supports the findings actually made. Id. Further, the party prevailing below is entitled to the benefit of all reasonable inferences drawn from the evidence. Id. With these principles in mind, we review Claimant's appeal.
C. Argument
Claimant contends the Board erred in determining he committed willful misconduct where he performed his job to the best of his ability and the record contains no evidence of any misconduct on his part. Citing Scott v. Unemployment Compensation Board of Review, 36 A.3d 643 (Pa. Cmwlth. 2012), Claimant asserts an inability to perform a job generally will not support a determination of willful misconduct.
Here, Claimant testified he always worked to the best of his ability. Notes of Testimony (N.T.), 5/21/14, at 21; R.R. at 26a. A finding that a claimant worked to the best of his ability negates a conclusion of willful misconduct. Norman Ashton Klinger & Assocs. v. Unemployment Comp. Bd. of Review, 561 A.2d 841 (Pa. Cmwlth. 1989). Claimant further testified he never violated any of Employer's rules, either intentionally or negligently. Id.
Rather, Claimant attributes his inability to meet Employer's monthly minimum requirements to several factors beyond his control. First, Claimant's wife suffered a debilitating stroke in 2011, which left her unable to care for herself. N.T. at 21; R.R. at 26a. Thereafter, Claimant became his wife's primary caregiver. Id.
Additionally, Claimant asserts, Employer reduced the number of leads it provided him following a transfer of ownership in 2013. Claimant testified that prior to the transfer, he received as many as 30 to 40 leads per month. N.T. at 20; R.R. at 25a. After the transfer, Employer provided Claimant with less than a handful of leads per month. N.T. at 20-21; R.R. at 25a-26a.
In response, Claimant asked Employer to again provide more leads. Employer, however, responded it could not guarantee leads to any advisor. N.T. at 19; R.R. at 24a. Compounding this change in policy, Claimant testified that some sales opportunities in his territory were taken from him and handled by Employer's internal sales staff in California. N.T. at 23-24; R.R. at 28a-29a.
Moreover, Claimant asserts, the reverse mortgage market deteriorated dramatically around this time. N.T. at 19; R.R. at 24a. Thus, although Claimant attempted to find his own leads, he did not do as well as he did in the past. Id.
In light of the factors discussed above, Claimant argues the Board's determination that he did not work to the best of his ability or otherwise engaged in willful misconduct is unsupported by the record and cannot withstand scrutiny. Claimant also points out the UC Law is a remedial statute enacted to alleviate the hardships of unemployment and should be liberally construed to achieve its purposes. Grieb. Given these circumstances, Claimant maintains we should reverse the Board's order and grant him UC benefits. Norman Ashton.
D. Analysis
Where a claimant's substandard work performance is the result of an unwillingness to work to the best of his ability, a disqualification for benefits under Section 402(e) is proper. Geslao v. Unemployment Comp. Bd. of Review, 519 A.2d 1096 (Pa. Cmwlth. 1987). However, a finding that a claimant worked to the best of his ability negates a conclusion of willful misconduct. Norman Ashton.
Here, the referee rejected as not credible Claimant's testimony that he took steps on his own to contact potential clients or otherwise self-generate any sales leads. See Referee's Dec. at 2-3. Consequently, the referee determined the record lacked sufficient evidence to support Claimant's assertions that his failure to meet Employer's monthly productivity goals resulted from circumstances beyond his control. Id.
On appeal, the Board adopted the referee's decision. In addition, the Board expressly concluded that Claimant did not work to the best of his ability to generate leads. Bd. Dec. at 1.
As discussed above, not every employee discharged for his unsatisfactory work performance is ineligible for UC benefits. Cullison v. Unemployment Comp. Bd. of Review, 444 A.2d 1330 (Pa. Cmwlth. 1982). However, where the employee demonstrates the ability to perform his job and is warned that the quality of his work has declined, the employee's failure to work at his proven potential may be construed as conduct showing an intentional and substantial disregard of the employer's interests and of the employee's duties and obligations. Id. In such cases, the employee's unsatisfactory work performance rises to the level of willful misconduct. Id.; see also Younes v. Unemployment Comp. Bd. of Review, 467 A.2d 1227 (Pa. Cmwlth. 1983) (where employee is warned that his job performance is below the level of his ability, and this conduct continues over a period of time after the warning, it is considered a conscious or careless disregard of the employer's interest and constitutes willful misconduct).
In applying our rationale in Younes and Cullison here, we note the referee credited the testimony of Employer's Human Resources Director, Cathy Carry (HR Director), that Claimant initially met Employer's monthly productivity expectations. See Referee's Dec. at 2; N.T. at 12; R.R. at 17a. In particular, HR Director testified she evaluated Claimant's performance during the course of his employment, and Claimant met Employer's expectations of securing two applications per month. N.T. at 12; R.R. at 17a.
Nonetheless, Employer placed Claimant on a performance improvement plan for the second time in July 2013 after he repeatedly failed to meet the minimum productivity requirements. Referee's Dec., Finding of Fact (F.F.) No. 3. Despite his wife's medical condition and the reduction in leads provided by Employer, Claimant again managed to meet Employer's monthly expectations of two applications per month. See Certified Record (C.R.) at Item #5 (Employer Separation Information), p. 9 (Employer's October 14, 2013 memo to Claimant titled "Performance Review- Close Out"); R.R. at 58a.
However, in January 2014, Employer again placed Claimant on a performance improvement plan. F.F. No. 9. Employer indicated Claimant needed to secure two applications per month in both February and March 2014. Id.
In addition, Employer again responded to Claimant's request that it provide him with more sales leads by advising him it cannot guarantee Claimant any number of leads, and Employer expected Claimant to self-generate leads to supplement those Employer provided. F.F. No. 11. Claimant, however, failed to secure any new applications in either February or March 2014. F.F. Nos. 12, 13. Consequently, Employer terminated Claimant for lack of productivity. F.F. No. 14.
In denying Claimant benefits, the referee and the Board made adverse credibility determinations rejecting Claimant's testimony that he took steps on his own to self-generate leads in order to meet Employer's monthly productivity requirements. As noted above, the Board, as the final fact-finder in UC cases, is empowered to resolve all issues of witness credibility, conflicting evidence and evidentiary weight. Ductmate Indus.
In sum, Employer had a reasonable expectation that Claimant supplement the leads provided him with self-generated leads of his own. Given the Board's determination that Claimant failed to establish he made an effort in 2014 to self-generate any leads, despite having done so in 2013 under similar circumstances, we are constrained to agree with the Board's conclusion that Claimant failed to work to the best of his demonstrated ability to meet Employer's minimum productivity requirements. Younes; Cullison. Therefore, Claimant's failure to perform his job at his proven potential constitutes an intentional and substantial disregard of Employer's interest in marketing its reverse mortgage product in Claimant's territory. Id.
III. Conclusion
While we are sympathetic to the Claimant's situation, the Board's credibility determinations, together with our deferential review of its fact-finding, control the outcome. Viewing the Board's decision in a light most favorable to Employer as the prevailing party, we discern no error or abuse of discretion in the Board's determination that Claimant's failure to work to the best of his ability to meet Employer's minimum productivity requirements constituted willful misconduct under Section 402(e) of the Law. Id. Accordingly, we affirm the Board's order.
In dueling footnotes, the parties also discuss the referee's response to Claimant's attorney's closing argument that the Employer was required by law to accommodate Claimant as he requested, by providing him with sales leads. R.R. at 32a. The referee did "not find the claimant's argument sustainable ...." Referee's Dec. at 2.
Claimant asserts that the referee erred in concluding that Employer's discharge of Claimant did not violate the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§1213165, and the Pennsylvania Human Relations Act (PHRA), Act of October 27, 1955, P.L. 744, as amended, 43 P.S. §§95163. Claimant argues it is unlawful under both the ADA and PHRA to discriminate or retaliate against an employee based upon a relationship with a disabled personhere, Claimant's wife. Br. for Pet. at 16, n.4.
However, we agree with the Board that the issue before the Court in this appeal is whether Claimant is entitled to UC benefits under the provisions of the Law following his discharge, not whether Employer had the right to discharge Claimant under the ADA or PHRA. Boyer v Unemployment Comp. Bd. of Review, 454 A.2d 524 (Pa. 1982). Br. for Resp't at 10, n.5. In other words, the ADA and PHRA are inapplicable to this appeal.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 14th day of April, 2015, the order of the Unemployment Compensation Board of Review is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge