E.D. Montijo v. UCBR ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Edgar D. Montijo, :
Petitioner :
:
v. :
:
Unemployment Compensation Board :
of Review, : No. 389 C.D. 2020
Respondent : Submitted: February 19, 2021
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: April 21, 2021
Edgar D. Montijo (Claimant) petitions this Court for review of the
Unemployment Compensation (UC) Board of Review’s (UCBR) January 24, 2020
order affirming the Referee’s decision denying him UC benefits under Section
402(e) of the UC Law (Law).1 The sole issue before this Court is whether the UCBR
erred by concluding that Fuling Plastic USA, Inc. (Employer) met its burden of
proving that Claimant committed willful misconduct.2 After review, this Court
affirms.
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(e) (referring to willful misconduct).
2
Claimant presents three issues in his Statement of Questions Involved: (1) whether the
Referee and the UCBR erred by concluding that Claimant’s alleged actions constituted willful
misconduct; (2) whether the Referee and the UCBR’s findings were supported by substantial
evidence; and (3) whether the Referee and the UCBR failed to consider Claimant’s just cause for
his actions. See Claimant Br. at 3. Because these issues are subsumed in this Court’s analysis of
whether the UCBR erred by concluding that Employer met its burden of proving that Claimant
committed willful misconduct, they have been combined and will be addressed accordingly herein.
Claimant worked from April 16, 2015 to October 9, 2019, as a forklift
operator for Employer.3 Employer’s August 2019 Employee Handbook (Handbook)
specified that an employee’s “[r]efusal or failure to follow safety rules and
procedures” is misconduct that could result in immediate employment termination.
See Certified Record (C.R.) at 105-106. The Handbook included Employer’s safety
rules. Claimant received the Handbook. See C.R. Item 10, December 5, 2019 Notes
of Testimony (N.T.) at 7, 18.
On September 30, 2019, while Employer’s Human Resources Manager
Monica Cajamarca (Cajamarca), Marketing Manager Jeannine Gallagher
(Gallagher), and technician Christian Debarro (Debarro) were walking in the
warehouse, Claimant exited a trailer driving a forklift and nearly struck Debarro.
Cajamarca and Gallagher met with Claimant to discuss the September 30, 2019
incident and, on October 3, 2019, suspended Claimant pending further investigation.
On October 9, 2019, Employer discharged Claimant for violating its safety rules.
Claimant applied for UC benefits. On November 1, 2019, the Altoona
UC Service Center determined that Claimant was ineligible for UC benefits pursuant
to Section 402(e) of the Law. Claimant appealed and a Referee held a hearing on
December 5, 2019. On December 6, 2019, the Referee affirmed the UC Service
Center’s determination. Claimant appealed to the UCBR. On January 24, 2020, the
UCBR affirmed the Referee’s decision. Claimant appealed to this Court.4
3
Claimant was also Employer’s Warehouse Lead and forklift trainer.
4
“‘Our scope of review is limited to determining whether constitutional rights were
violated, whether an error of law was committed, or whether the findings of fact were unsupported
by substantial evidence.’ Miller v. Unemployment Comp. Bd. of Rev[.], 83 A.3d 484, 486 n.2 (Pa.
Cmwlth. 2014).” Talty v. Unemployment Comp. Bd. of Rev., 197 A.3d 842, 843 n.4 (Pa. Cmwlth.
2018).
2
Initially,
Section 402(e) of the Law provides that an employee is
ineligible for [UC] benefits when his unemployment is due
to discharge from work for willful misconduct connected
to his work. The employer bears the burden of proving
willful misconduct in a[] [UC] case. Willful misconduct
has been defined as (1) an act of wanton or willful
disregard of the employer’s interest; (2) a deliberate
violation of the employer’s rules; (3) a disregard of
standards of behavior which the employer has a right to
expect of an employee; or (4) negligence indicating an
intentional disregard of the employer’s interest or a
disregard of the employee’s duties and obligations to the
employer.
Sipps v. Unemployment Comp. Bd. of Rev., 181 A.3d 479, 481 (Pa. Cmwlth. 2018)
(emphasis omitted) (quoting Dep’t of Transp. v. Unemployment Comp. Bd. of Rev.,
755 A.2d 744, 747 n.4 (Pa. Cmwlth. 2000) (citation omitted)).
Where willful misconduct is based upon the violation of a
work rule, the employer must establish the existence of the
rule, its reasonableness, and that the employee was aware
of the rule. Once employer meets this burden, the burden
shifts to the claimant to prove that the rule was
unreasonable or that he had good cause for violating the
rule.
Sipps, 181 A.3d at 482 (quoting Weingard v. Unemployment Comp. Bd. of Rev., 26
A.3d 571, 574-75 (Pa. Cmwlth. 2011) (citation omitted)). “A claimant has good
cause if . . . h[is] actions are justifiable and reasonable under the circumstances.”
Grand Sport Auto Body v. Unemployment Comp. Bd. of Rev., 55 A.3d 186, 190 (Pa.
Cmwlth. 2012) (citation omitted) (quoting Docherty v. Unemployment Comp. Bd. of
Rev., 898 A.2d 1205, 1208-09 (Pa. Cmwlth. 2006)). Ultimately, “[t]he question of
whether conduct rises to the level of willful misconduct is a question of law to be
determined by this Court.” Scott v. Unemployment Comp. Bd. of Rev., 105 A.3d
839, 844 (Pa. Cmwlth. 2014).
3
Claimant argues that the UCBR erred by concluding that Employer met
its burden of proving that Claimant committed willful misconduct. Essentially,
Claimant argues that this Court should believe his version of the facts, i.e., that he
did nothing wrong. Employer rejoins that it established Claimant was discharged
because he violated Employer’s safety rules while operating a forklift on September
30, 2019, and he failed to demonstrate good cause for his conduct.
At the Referee hearing, Cajamarca testified that, since April 2019, she
and Gallagher had been working toward making Employer’s warehouse a safer
environment after the former Logistics Manager was fired. To that end, they
conducted weekly safety meetings and updated Employer’s Handbook in August
2019, which Claimant received.
Cajamarca explained that, on September 30, 2019, as she, Gallagher
and Debarro were walking through the warehouse, Claimant “back[ed] out of the
trailer on a forklift at a high speed without beeping his horn to back up and almost
hit Debarro[.]” N.T. at 7. Cajamarca estimated that Claimant’s speed was
approximately 50% to 75% faster than normal, and if they had not moved out of the
way, Claimant probably would have struck them. See N.T. at 8-11. She described
that Claimant got so close to Debarro, Debarro was able to touch the forklift with a
paper in his hand. See N.T. at 8-9; see also C.R. at 82.
Cajamarca recalled that, when she and Gallagher met with Claimant to
discuss the incident, Claimant denied violating Employer’s safety procedures and
further responded that he did not think anyone else was in the warehouse,5 and that
no one got hurt. See N.T. at 10-11. Cajamarca declared that Claimant was not
permitted to disregard Employer’s safety policies simply because he believed that
5
When the incident occurred, Employer was conducting a meeting at another warehouse,
which most employees were attending. However, in addition to Claimant, a second forklift driver
and Employer’s shipping and receiving clerk remained on the premises. See N.T. at 10. Cajamarca
and Gallagher were returning from that meeting when this incident occurred.
4
no one was in the warehouse. See N.T. at 10. Cajamarca stated that Claimant’s
employment was terminated for violating Employer’s forklift driver procedures due
to his excessive speed, and his failure to beep his horn and look back while exiting
the trailer on September 30, 2019.6 See N.T. at 10; see also C.R. at 25.
Gallagher confirmed Cajamarca’s description of the steps they were
taking to make Employer’s warehouse safer, including conducting weekly safety
meetings. Gallagher testified regarding the September 30, 2019 incident, that
Claimant exited the trailer in reverse at a faster rate of speed than she had observed
other employees do in similar circumstances. See N.T. at 12. Gallagher further
declared that Claimant did not beep his horn or look behind him, as Employer’s
safety guidelines require. See N.T. at 13. She recalled that Claimant abruptly
stopped the forklift when Debarro yelled; otherwise, Claimant would have struck
Debarro. See N.T. at 13-14. Gallagher also described Claimant denying that he was
speeding, declaring that no one was supposed to be in the warehouse, and justifying
that no one got hurt. See N.T. at 14-15. She stated that Claimant’s responses did
not reflect an understanding that he had made poor decisions that day. See N.T. at
15.
Employer also presented the Handbook, which declared, in pertinent
part:
By deciding to work here, you agree to follow our rules:
While it is impossible to list everything that could be
considered misconduct in the workplace, what is outlined
here is a list of common-sense infractions that could result
in discipline, up to and including immediate termination
of employment. . . .
6
The record contains a narrative regarding another Claimant safety violation on October
1, 2019; however, Employer did not present evidence of that incident at the Referee hearing. See
C.R. at 20.
5
....
• Refusal or failure to follow safety rules and procedures.
C.R. at 105-106. In the Safety and Loss Prevention portion of the Handbook,
Employer expressly prohibited employees from “[t]aking any action to place a
person in reasonable fear of imminent harm or offensive contact.” C.R. at 125. In
the Safety Guidelines to Prevent Accidents portion of the Handbook, Employer
specified the following rules, inter alia, relative to use of company vehicles: “Do
Not Drive too fast for conditions,” “Do Not Fail to reduce speed,” “Do Not Fail to
yield,” “Do Not Back up improperly[.]” See C.R. at 129.
Claimant acknowledged that he received the Handbook and testified:
I was coming out of the trailer. Yes, I was looking back.
I did honk the horn, but apparently they didn’t hear. . . .
[W]hen I came out of the trailer, I turned to the left . . . . I
always turn close to the back doors because I’m going to
turn and then go into the staging area to grab a pallet.
When I made the turn, I saw [Debarro]. I pressed the
brakes and stopped the lift right away.
N.T. at 17; see also N.T. at 18. Claimant added:
[No] one’s supposed to be near that dock or they’re
supposed to walk alongside the staging area in a line, not
side-by-side, not - they’re supposed to walk that way, if
we’re going to go by [s]afety [r]ules, number one.
Number two, forklifts that were purchased and brought
into this company were -- we weren’t allowed to use until
Eastern Lift came in and preset the speeds on -- and all the
settings on it. . . . Because once that setting is set, you can
mash the pedal down, the lift is only going to go as fast as
you’re allowing me to go in the warehouse
[(approximately 10 miles per hour without a load)]. So
you cannot tell me that I was in excess -- if you’re limiting
my excess of speed. Saying that I went 50 or 75 [%] faster
than the lift’s supposed to, it’s not possible because
[Employer is] governing the speed.
6
N.T. at 17; see also N.T. at 18-19. In addition, Claimant declared that Employer had
not consistently enforced its safety rules.
Based upon the evidence, the Referee denied Claimant UC benefits
pursuant to Section 402(e) of the Law, stating that Employer established that it had
reasonable safety rules in place of which Claimant was aware and, based upon
Employer’s witnesses’ credible testimony, Claimant’s conduct on September 30,
2019, violated those safety rules. See Referee Dec. at 4; C.R. at 140. The Referee
further declared that, although Claimant testified that Employer did not consistently
enforce its safety rules, his mere allegation was insufficient to meet his burden of
establishing good cause for violating them. See Referee Dec. at 2-3; C.R. at 138-
139.
This Court has explained: “[T]he [UCBR] is the ultimate fact-finder in
[UC] matters . . . . Where substantial evidence supports the [UCBR’s] findings, they
are conclusive on appeal.” Sipps, 181 A.3d at 484 (quoting Ductmate Indus., Inc. v.
Unemployment Comp. Bd. of Rev., 949 A.2d 338, 342 (Pa. Cmwlth. 2008) (citations
omitted)). “Substantial evidence is relevant evidence upon which a reasonable mind
could base a conclusion.” Sipps, 181 A.3d at 484 (quoting Sanders v. Unemployment
Comp. Bd. of Rev., 739 A.2d 616, 618 (Pa. Cmwlth. 1999)).
Here, the UCBR made the following findings:
1. [Employer] employed [Claimant] through October 9,
2019, [] as a forklift operator.
2. [Claimant] knew that [Employer’s] policy considered a
safety violation to be a potentially terminable offense.
3. [Claimant] knew that [Employer’s] safety procedures
required him to use his horn when operating a forklift in
reverse.
4. On September 30, 2019, [Claimant] backed his forklift
out of a trailer at [an] excessive speed without using his
7
horn and stopped abruptly before nearly striking a co[-
]worker.
5. On October 9, 2019, [Employer] discharged [Claimant]
for violating its safety policies on September 30, 2019.
C.R. Item 15, UCBR Op. at 1; C.R. at 193. The UCBR affirmed the Referee’s
decision, stating:
Through credible testimony and documentary evidence,
[Employer] established that [Claimant] knew its safety
policy required him to use his horn when operating a
forklift in reverse, [a] violation of which was a potentially
terminable offense.
[Employer] presented credible testimony that [Claimant]
did not use his horn when operating his forklift in reverse
on September 30, 2019. Additionally, [Claimant]
operated his forklift at [an] excessive speed and came
dangerously close to striking a co[-]worker. Even absent
a policy, such speed and proximity to an individual
evidence[s] [Claimant’s] reckless disregard of
[Employer’s] interests. Whether [Claimant] expected
others to be present or co[-]workers were oriented
differently than expected does not change that [Claimant]
violated a known policy. [Claimant] has not credibly
justified his conduct.
UCBR Op. at 2; C.R. at 194.
Based upon this Court’s review of the record, there was substantial
evidence to support the UCBR’s findings and conclusions. Thus, this Court holds
that the UCBR properly concluded Claimant committed willful misconduct without
good cause for doing so. Accordingly, this Court discerns no error or abuse of
discretion by the UCBR in denying Claimant UC benefits under Section 402(e) of
the Law.
For all of the above reasons, the UCBR’s order is affirmed.
_________________________________
ANNE E. COVEY, Judge
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Edgar D. Montijo, :
Petitioner :
:
v. :
:
Unemployment Compensation Board :
of Review, : No. 389 C.D. 2020
Respondent :
ORDER
AND NOW, this 21st day of April, 2021, the Unemployment
Compensation Board of Review’s January 24, 2020 order is affirmed.
_________________________________
ANNE E. COVEY, Judge