B.A. Dietrich v. UCBR ( 2015 )


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  •            IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Brian A. Dietrich,                           :
    Petitioner       :
    :
    v.                      :    No. 488 C.D. 2015
    :    SUBMITTED: September 11, 2015
    Unemployment Compensation                    :
    Board of Review,                             :
    Respondent               :
    BEFORE:       HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
    HONORABLE ROBERT SIMPSON, Judge
    HONORABLE JAMES GARDNER COLINS, Senior Judge
    OPINION NOT REPORTED
    MEMORANDUM OPINION BY
    JUDGE LEADBETTER                                 FILED: November 24, 2015
    Brian A. Dietrich (Claimant) petitions for review of the order of the
    Unemployment Compensation Board of Review (Board) that denied him
    unemployment compensation benefits under Section 402(e) of the Unemployment
    Compensation Law (Law).1 Claimant challenges the Board's conclusion that he
    was ineligible for benefits under Section 402(e) of the Law because he was
    discharged for making insolent remarks to his supervisor in violation of Employer's
    policy prohibiting insubordination.        Because the record supports the Board's
    conclusion, we affirm.
    1
    Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
    802(e). Section 402(e) provides, in pertinent part, that an employee shall be ineligible for
    compensation for any week "[i]n which his unemployment is due to his discharge or temporary
    suspension from work for willful misconduct connected with his work …."
    Claimant was employed by Samuels and Son Seafood Co., Inc.
    (Employer) as a full-time lobby attendant performing administrative and clerical
    work from March 1, 1998, until he was discharged on October 17, 2014. The Erie
    UC Service Center granted Claimant's application for benefits, determining that he
    was not ineligible for benefits under Section 402(e) of the Law. After a hearing, at
    which Claimant and Employer's witnesses, represented by counsel, appeared and
    testified, the referee concluded that Claimant was discharged for violating
    Employer's policy prohibiting insubordination and was, therefore, ineligible for
    benefits under Section 402(e) of the Law.
    The Board's findings and the undisputed evidence in the record reveal
    the following circumstances surrounding the termination of Claimant's
    employment. On October 17, 2014, Employer's general manager and Claimant's
    supervisor, Mark Falcone, met with Claimant in his office and gave Claimant a
    written warning for failing to clock in and out for lunch breaks and eating lunch at
    the work station in violation of Employer's meal break policy. Claimant had
    previously received four oral and written warnings in 2012 and 2013 for the same
    policy violations. Employee Warning Report; Reproduced Record (R.R.) at 17a.
    Falcone testified that as Claimant signed the warning and handed it
    over to him, Claimant asked him, "don't you have better things to do … [a]round
    here[?]" December 29, 2014 Hearing, Notes of Testimony (N.T.) at 8; R.R. at 73a.
    Claimant further asked: "What about the ten minute breaks I didn’t get for the last
    five years, how am I going to … get paid for that?" 
    Id. Falcone testified:
    "I had
    told him no one ever kept him from taking a break. And he says well, we'll have to
    see about that. I'm going to have to … get in touch with the NLRB [National
    Labor Relations Board]." 
    Id. Falcone further
    testified:
    We proceeded over to the copy machine.           I was …
    2
    making a copy of the written warning for [Claimant].
    And I said to him, don't tell me how to do my job. And
    that's when he said somebody ought to be telling you
    how to do your job around here. And he said it in the
    office setting, but [Claimant] has a fairly loud voice. I'm
    not saying he was yelling, but he does have a loud
    speaking manner and there was [sic] probably 15 to 20
    people in that office, in the accounting office within
    earshot.
    
    Id. After Falcone
    discussed the incident with Employer's chief financial
    officer and Employer's owner, Employer discharged Claimant for violating its
    written policy prohibiting insubordination. Under Employer's policy, an employee
    may be subject to disciplinary action, up to discharge, for "[i]nsubordination or
    refusal to follow management instructions on legitimate job-related matters." R.R.
    at 31a. The Board determined that Claimant's insolent remarks to his manager
    amounted to insubordination and that his action was not justified. The Board
    concluded that Claimant was discharged for willful misconduct and was, therefore,
    ineligible for benefits under Section 402(e) of the Law. Claimant's appeal to this
    Court followed.
    Claimant argues that the record does not support the Board's
    conclusion that he was insubordinate. He maintains that he was merely raising
    legitimate questions about unpaid break time to his supervisor and that his action
    did not rise to the level of willful misconduct.2
    2
    In his brief, Claimant attempts to establish that Falcone incorrectly testified before the
    referee that he asked Falcone, "don't you have better things to do?" According to Claimant, he
    instead nicely stated to Falcone that "I would think you have better things to do around here."
    Claimant's Brief at 11. In support, Claimant cites Falcone's deposition testimony taken in his
    action against Employer filed in the United States District Court for the Eastern District of
    Pennsylvania. He included in the reproduced record Falcone's deposition testimony (85a-153a)
    and the deposition testimony of the owner of Employer, Samuel D'Angelo, (154a-165a) taken in
    (Footnote continued on next page…)
    3
    An employer contesting an employee's eligibility for benefits under
    Section 402(e) of the Law has the initial burden of proving that the employee
    engaged in willful misconduct.3 Patla v. Unemployment Comp. Bd. of Review, 
    962 A.2d 724
    , 727 (Pa. Cmwlth. 2008). Once the employer establishes a prima facie
    case of willful misconduct, the burden then shifts to the employee to demonstrate
    good cause for his or her conduct. 
    Id. Where a
    charge of willful misconduct is
    based on a violation of a work rule, the employer must prove the existence of the
    rule, the reasonableness of the rule and its violation. Ellis v. Unemployment Comp.
    Bd. of Review, 
    59 A.3d 1159
    , 1162 (Pa. Cmwlth. 2013). Whether the claimant's
    conduct rose to the level of willful misconduct is a question of law subject to our
    plenary review. Scott v. Unemployment Comp. Bd. of Review, 
    105 A.3d 839
    , 844
    (Pa. Cmwlth. 2014), appeal denied, ___A.3d ___ (Pa., No. 22 WAL 2015, filed
    August 21, 2015).
    Employer's policy does not define the term "[i]nsubordination."
    BLACK'S LAW DICTIONARY 814 (8th ed. 2004) defines "insubordination" to
    include "[a]n act of disobedience to proper authority." The definition of the term
    _____________________________
    (continued…)
    that action after the Board's decision in this matter. This Court granted the Board's motion and
    struck their deposition testimony from the reproduced record, stating that it cannot be considered
    in this appeal because it was not admitted into the record at the referee's hearing and is not a part
    of the certified record under Rule 1921 of the Pennsylvania Rules of Appellate Procedure,
    Pa.R.A.P. 1921. See Welsh v. Bulger, 
    698 A.2d 581
    , 586 n.12 (Pa. 1997) (holding that appellate
    courts cannot consider any matter which is not part of the record).
    3
    The term "willful misconduct" has been defined as: (1) the wanton and willful disregard of
    the employer's interests; (2) the deliberate violation of rules; (3) the disregard of standards of
    behavior which an employer can rightfully expect of its employee; or (4) negligence which
    manifests culpability, wrongful intent, evil design, or intentional and substantial disregard for the
    employer's interests or the employee's duties and obligations. Glatfelter Barber Shop v.
    Unemployment Comp. Bd. of Review, 
    957 A.2d 786
    , 792 (Pa. Cmwlth. 2008).
    4
    "insubordinate" includes "unwilling to submit to authority, … infraction of rules,
    or a generally disaffected attitude toward authority." WEBSTER'S THIRD NEW
    INTERNATIONAL DICTIONARY 1172 (2002).             An employee's "use of abusive,
    vulgar or offensive language with a supervisor is a form of insubordination that can
    constitute willful misconduct, even if the employer has not adopted a specific work
    rule prohibiting such language." Brown v. Unemployment Comp. Bd. of Review,
    
    49 A.3d 933
    , 937 (Pa. Cmwlth. 2012).
    An employee's remarks questioning an employer's authority and
    veracity in an insolent manner can also constitute willful misconduct. Sargent v.
    Unemployment Comp. Bd. of Review, 
    630 A.2d 534
    , 536 (Pa. Cmwlth. 1993). In
    Sargent, the claimant demanded the employer's explanation for discharging her
    coworkers and accused the employer of spreading rumors as to the cause of the
    discharge. When the employer denied the accusation, the claimant expressed her
    skepticism as to the employer's truthfulness.       The employer discharged the
    claimant for her insolent remarks questioning its authority and veracity. The Board
    concluded that the claimant's behavior of openly and directly questioning the
    employer's veracity and accusing the employer without cause was "insolence"
    which was in disregard of the standards an employer could reasonably expect from
    an employee and rose to the level of willful misconduct. 
    Id. at 535.
    We agreed
    that the claimant's "manner was insolent" and constituted willful misconduct. 
    Id. at 537.
                Claimant first stated that his supervisor should have better things to do
    than issuing a warning to him for violating a meal break policy. Claimant then told
    the supervisor that someone should tell him how to do his job in a loud voice
    where 15 to 20 employees in the office could hear. Those remarks questioned the
    5
    supervisor's authority to enforce Employer's policy and his competency to do his
    job in an insolent manner. Under Sargent, such behavior was in disregard of the
    standards Employer could rightfully expect from its employees and rose to the
    level of willful misconduct. See also Strong v. Unemployment Comp. Bd. of
    Review, 
    459 A.2d 57
    , 59 (Pa. Cmwlth. 1983) (holding that the claimant's behavior
    of describing his foreman and the mine superintendent as timorous on the subject
    of mine safety and calling the superintendent a greenhorn, a person who is
    inexperienced and unsophisticated in the art of mining, was "no mere peccadillo"
    and constituted willful misconduct).
    Claimant cites Luketic v. Unemployment Compensation Board of
    Review, 
    386 A.2d 1045
    (Pa. Cmwlth. 1978), for the proposition that an employee's
    raising of legitimate questions about an employer's action does not constitute
    willful misconduct, even when coupled with the employee's bad attitude.         In
    Luketic, the claimant, a caseworker for the local agency, stated at a staff meeting
    that the local agency was misleading its employees by telling them that they were
    laid off due to the alleged funding problems. She indicated that she intended to
    check with the Department of Welfare as to the necessity for the layoffs. Two
    days later, she was discharged for, inter alia, insubordination. We concluded that
    the claimant's conduct did not rise to the level of willful misconduct because her
    comments were reasonable and neither vulgar nor abusive. Claimant also cites
    Dincher v. Unemployment Compensation Board of Review, 
    502 A.2d 797
    (Pa.
    Cmwlth. 1986), to argue that merely talking back to a supervisor is not willful
    misconduct absent abusive language.
    This case is factually distinguishable from Luketic and Dincher.
    Unlike in those cases, Claimant's action went beyond merely raising legitimate
    6
    questions about Employer's meal break policy or talking back to the supervisor.
    Claimant questioned the supervisor's authority to enforce the written policy and his
    ability to do his job in an insolent manner in front of the coworkers. Such behavior
    constitutes insubordination and willful misconduct under Sargent and Strong.
    Accordingly, the Board's order is affirmed.
    _____________________________________
    BONNIE BRIGANCE LEADBETTER,
    Judge
    7
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Brian A. Dietrich,                        :
    Petitioner      :
    :
    v.                   :     No. 488 C.D. 2015
    :
    Unemployment Compensation                 :
    Board of Review,                          :
    Respondent            :
    ORDER
    AND NOW, this 24th day of November, 2015, the order of the
    Unemployment Compensation Board of Review in the above-captioned matter is
    AFFIRMED.
    _____________________________________
    BONNIE BRIGANCE LEADBETTER,
    Judge
    

Document Info

Docket Number: 488 C.D. 2015

Judges: Leadbetter, J.

Filed Date: 11/24/2015

Precedential Status: Precedential

Modified Date: 11/24/2015