R.J. Anderson v. UCBR ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Roberta J. Anderson, :
Petitioner :
:
v. : No. 1056 C.D. 2017
: Submitted: December 29, 2017
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: March 20, 2018
Petitioner Roberta J. Anderson (Claimant) petitions for review of an
order of the Unemployment Compensation Board of Review (Board). The Board
affirmed the Unemployment Compensation Referee’s (Referee) decision, denying
Claimant unemployment compensation benefits pursuant to Section 402(e) of the
Unemployment Compensation Law (Law),1 based on willful misconduct. For the
reasons set forth below, we affirm.
Claimant filed for unemployment compensation benefits subsequent to
her discharge from employment with Country Pride Restaurant (Employer). The
Erie UC Service Center (Service Center) determined that Claimant was ineligible
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended,
43 P.S. § 802(e).
for unemployment compensation benefits under Section 402(e) of the Law.
(Certified Record (C.R.), Item No. 5.) Claimant appealed the Service Center’s
determination, and a Referee conducted a hearing. Employer presented the
testimony of Employer’s General Manager, Jody Gemzik (“General Manager”).
Claimant testified on her own behalf.
General Manager testified that Claimant began working for Employer
in December 2014. (C.R., Item No. 9 at 5.) He stated that she worked as a full-time
kitchen specialist three times a week and as a waitress twice a week. (Id. at 5.)
General Manager testified that after Claimant worked the night shift on
January 6, 2017, to January 7, 2017, he noticed that she had given eight senior
discounts, a number he considered to be unusual. (Id. at 5-6.) Senior discounts are
given to those over the age of fifty-five. (Id. at 6.) General Manager reviewed the
restaurant’s video surveillance and observed that some of the customers to whom
Claimant gave the discount appeared to be under the age of fifty-five. (Id.) Claimant
gave a senior discount to one of the restaurant’s regular customers, who is known by
General Manager to be forty-two years old. (Id. at 10.) Claimant also gave the
senior discount to three customers who appeared to be in their mid-twenties. (Id.)
General Manager testified that he confronted Claimant, and she responded that she
gave these three customers the discount because their food was cold. (Id.) General
Manager also testified that, although Claimant had the authority to give a discount
for cold food, she was required to indicate the correct reason for the discount on the
top of the check. (Id. at 6-7.) Instead, Claimant applied the senior discount to their
checks, but she did not write an explanation on the checks. (Id.) General Manager
stated that proper procedure in the restaurant was to use a complaint code and
subtract only the price of the food about which a customer complained. (Id. at 8.)
2
In both instances, video surveillance showed Claimant taking the
customers’ money and applying the discounts after they paid. (Id. at 11-12.) At the
time of hire, Employer’s employees are trained on a variety of topics, including
discounts. (Id. at 15.) This policy is included in the employee handbook, a copy of
which is given to new employees and also available online. (Id. at 16.) General
Manager testified that proper procedure in the restaurant required the discount to be
applied before the customer paid, with the customer receiving a reprinted check with
a new time on it. (Id. at 12.) Employer instructs the employees that if a discount is
given, they must write the correct explanation on the customer’s check. (Id. at 15.)
If a manager is present, the employee is required to inform a manager of the problem
and the manager will issue the discount. (Id. at 15.)
In response, Claimant testified that the three customers in their
mid-twenties complained about all of the food they ordered. (Id. at 18.) Rather than
giving them the food for free, Claimant chose to give them a discount. (Id.)
Claimant acknowledged that she chose the wrong discount code by choosing senior
discount, but she intended to later correct the discount code and write an explanation
on the check. (Id. at 18-19.) Claimant testified that because of the amount of work
she was trying to complete, including the duties of other employees, she forgot to
write the reason for the discount on the check. (Id.) Claimant also testified that in
the past, when she forgot to write the correct discount code or an explanation for the
discount on checks, the other managers on duty told her not to worry about it. (Id.
at 20.)
Claimant also testified that when the three customers were about to
leave, she was ready to reprint their checks in order to apply a discount. (Id.)
Instead, one of the customers insisted that Claimant keep the difference between the
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original check and the check with the discount applied so that she had a better tip.
(Id.) Claimant testified that a similar situation happened with the single customer.
(Id. at 19.) Claimant stated that he asked her to apply the “old man” discount to his
check so that he could give Claimant a bigger tip. (Id.) Claimant explained that she
complied with this instruction because she was trained to do this by other waitresses.
(Id.) Claimant also stated that she never received a copy of the handbook and that,
her manager completed Employer’s test for her at the time of hire, which was based
on the employee handbook. (Id.) Claimant testified that she believed General
Manager fired her because she had called Employer’s corporate offices before her
discharge, complaining about things that were going on in the store. (Id. at 20, 23.)
Claimant testified:
R[eferee]: Okay. All right. Anything else at all Ms.
Anderson?
C[laimant]: I just don’t understand why I’m being picked
on about it when it happens all the time there and there’s
so many other incidents where like he’s saying it’s theft
from the company, I’m stealing from the company, that,
that amount of money is not going to make or break me. I
didn’t need it. I was getting paid good money to work
there and I enjoyed my job. There’s other incidents I went
personally to him and told him about theft of the company,
and nothing was done about it, nothing at all. That’s why
I don’t understand. Well in my mind I know why he did
it, it’s because I was calling corp on him and Missy
because of things that were going on, but that’s why I feel
he did this to me, but I’m saying when I told him about it
and stuff nothing was ever done about it, so why are you,
you know, bringing it up unless you were trying to get me
out of there because you wanted me to keep my mouth
shut. That’s what my take is on the whole thing.
R: All right. Anything else at all?
C: I just – I don’t feel like I stole anything because I didn’t.
I waited on people and she told me to keep the difference.
4
(Id. at 23.)
During rebuttal, General Manager testified that Claimant called
corporate to make a complaint after her termination and that there were no other calls
to corporate before then. (Id. at 27.) Only after General Manager’s testimony on
rebuttal did Claimant expound on her earlier testimony as follows:
R[eferee]: When did you call corporate?
C[laimant]: I called corporate on – it was like the third
week of December, I called like three times, and then right
– maybe three days before this – no, four days before this
happened I called her and I talked to her, because it used
to be Ashley and now it’s a new girl, and I called her and
I told her what he was trying to do, take my hours away
from me, and I also told her other stuff about sexual
harassment that I – that it don’t necessarily have to be
sexual harassment, but if it makes you feel uncomfortable,
and she gave me a number to call and I called that number.
This was all done like the week before, and then, yeah, that
same week after then I started calling more, yes I did. But
I have called them before that, and there are records of it,
and I have it on my phone at home, records of the issues
that I was upset about. And I was told, oh just keep your
mouth shut and work. Not by him, but I was just told keep
your mouth shut and work, you know, at least you got a
job. Well it’s not fair and I was mad, and I called them.
And I’m [not] going to deny I did because I did it. I
probably called them 14 times.
R: Okay. Anything else?
C: No.
(Id. at 27-28.)
Following the hearing, the Referee issued a decision, which affirmed
the Service Center’s determination denying unemployment compensation benefits
pursuant to Section 402(e) of the Law. The Referee made the following relevant
findings:
5
1. The claimant was employed with Country Pride as a
kitchen specialist/server, full-time, from
December 2014 until January 7, 2017, her last day of
work.
2. Employer has a policy regarding failure to control
funds, which provides for discharge upon first offense
for failure to secure company funds and/or violating the
company cash handling policies.
3. The claimant was aware of the employer’s policies.
4. The claimant worked third shift hours from January 6
to January 7, 2017.
5. During her shift, the claimant applied a 20% senior
discount to eight tickets out of the 22 total that she
handled during that shift.
6. The majority of those eight tickets were not associated
with patrons over the age of 55, as required to be issued
a senior discount.
7. The claimant applied the senior discount after the
patrons had paid their bills and left the establishment,
keeping the difference for herself as additional tip
money.
8. The claimant was discharged effective
January 7, 2017, due to violation of the employer’s
failure to control funds and cash handling policies.
(C.R., Item No. 10.)
The Referee resolved any conflicts in testimony in Employer’s favor.
(Id.) The Referee found that Employer presented competent testimony and evidence
establishing that Claimant failed to control funds and violated cash handling policies.
(Id.) The Referee stated that she did not find credible Claimant’s statement that all
the patrons involved instructed her to apply the discount and keep the difference as
an additional tip. (Id.) The Referee concluded that Claimant’s conduct not only
6
violated Employer’s policies but also fell below the standards of behavior Employer
had the right to expect. (Id.) The Referee, therefore, concluded that Claimant’s
actions rose to the level of willful misconduct and denied her benefits. (Id.)
Claimant appealed the Referee’s decision to the Board, and the Board
affirmed the Referee’s decision. (C.R., Item No. 12.) The Board adopted and
incorporated the Referee’s findings of fact and conclusions of law, but it replaced
finding of fact number 6 with the following finding: “At least three of those eight
tickets were not associated with patrons over the age of fifty-five as required to be
issued a senior discount.” (Id.) The Board provided the following reasoning for its
decision:
The claimant asserts in her appeal that she was discharged
because she called corporate about the general manager
and elaborates on why she called corporate. The claimant
did not testify to those instances at the hearing therefore
there is not enough competent evidence in the record to
support a finding that the claimant was discharged because
she called corporate rather than for violating the
employer’s cash handling policy. The claimant also
asserts that there was no way that the general manager
could have known that the eight patrons the claimant gave
senior discounts to were not fifty-five years old. The
general manager credibly testified that the first customer
in the video was forty-two years old and the group of three
customers whom the claimant also gave a discount to were
clearly not over fifty-five. Therefore, based on those three
transactions alone the claimant violated the employer’s
cash handling policy.
(Id.)
7
On appeal,2 Claimant argues substantial evidence does not exist to
support a finding that she violated Employer’s cash handling policy. We initially
note that Claimant does not identify with specificity the Board’s findings of fact that
she challenges. Claimant contends, in her brief, that her termination was retaliation
for the complaint she made to Employer’s corporate office regarding General
Manager’s sexually explicit behavior at work. We construe Claimant’s argument as
challenging whether the Board’s findings of fact numbers 2, 6, 7, and 8 are supported
by substantial evidence. Further, Claimant argues that the Board erred as a matter
of law in concluding that Claimant is ineligible for benefits under Section 402(e) of
the Law.
Substantial evidence is defined as relevant evidence upon which a
reasonable mind could base a conclusion. Johnson v. Unemployment Comp. Bd. of
Review, 502 A.2d 738, 740 (Pa. Cmwlth. 1986). In determining whether there is
substantial evidence to support the Board’s findings, this Court must examine the
testimony in the light most favorable to the prevailing party, giving that party the
benefit of any inferences that can logically and reasonably be drawn from the
evidence. Id. A determination as to whether substantial evidence exists to support
a finding of fact can only be made upon examination of the record as a whole. Taylor
v. Unemployment Comp. Bd. of Review, 378 A.2d 829, 831 (Pa. 1977). The Board’s
findings of fact are conclusive on appeal only so long as the record taken as a whole
contains substantial evidence to support them. Penflex, Inc. v. Bryson,
485 A.2d 359, 365 (Pa. 1984).
2
This Court’s standard 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. Section 704 of the Administrative Agency Law,
2 Pa. C.S. § 704.
8
First, we address Claimant’s argument that substantial evidence does
not exist to support a finding that Claimant violated the cash handling policy.
Rather, Claimant contends that she was fired in retaliation for reporting General
Manager’s behavior to Employer’s corporate offices. In an unemployment case, the
Board is the final finder of fact and arbiter of credibility. Johnson v. Unemployment
Comp. Bd. of Review, 744 A.2d 817, 820 (Pa. Cmwlth. 2000). The Board is also
empowered to resolve conflicts in evidence. DeRiggi v. Unemployment Comp. Bd.
of Review, 856 A.2d 253, 255 (Pa. Cmwlth. 2004). Claimant contends that when
General Manager discovered that Claimant reported his behavior to corporate, he
falsely accused her of violating Employer’s cash handling policies. Claimant also
contends that General Manager had never worked a night shift to know whether
customers were entitled to senior discounts, whereas she knew the customers and
whether they were entitled to senior discounts. (Id.) She states that in the case of
the three customers in their mid-twenties, she “tried to make them happy (as
customer is always right)” and did what “seasoned employees” taught her to do.
(Claimant’s Br. at 7.) Claimant asserts that, as a rule, she did not apply discounts
after customers left, but these three customers were ready to pay at the time they
brought their dissatisfaction to her attention. She contends that although she asked
them to wait until she could apply the discount and reprint the check, one of the
customers instructed her to apply the discount and keep the difference so that she
could have “a little better tip.” (Id. at 8.) Claimant states that she tried to explain
the situation to General Manager, but he would not let her explain. Instead, he
accused her of being a thief and fired her. Claimant argues that she was following
Employer’s policy of “the customer is always right.” (Id. at 9.)
9
The Board properly rejected Claimant’s argument that General
Manager fired her for calling Employer’s corporate office about him because
Claimant did not testify at the hearing regarding the bases for her call to corporate
about him. (C.R., Item No. 12.) Substantial record evidence establishes that
Claimant gave senior discounts to customers who were not entitled to such a
discount. Specifically, the Board found that General Manager credibly testified that
the first customer in the video was forty-two years old and that the group of three
customers to whom the Claimant gave a discount were also under the age of
fifty-five. (Id.) In fact, Claimant does not contend that these customers were
fifty-five or more years old. (Id.) Thus, substantial evidence exists to support a
finding that Claimant violated Employer’s cash handling policy.
We next address Claimant’s contention that the Board erred in
concluding that Claimant’s actions rose to the level of willful misconduct.3
Section 402(e) of the Law provides, in part, 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.”
The employer bears the burden of proving that the claimant’s unemployment is due
to the claimant’s willful misconduct. Walsh v. Unemployment Comp. Bd. of Review,
943 A.2d 363, 369 (Pa. Cmwlth. 2008). The term “willful misconduct” is not
defined by statute. The courts, however, have defined “willful misconduct” as:
(a) wanton or willful disregard for an employer’s interests,
(b) deliberate violation of an employer’s rules,
(c) disregard for standards of behavior which an employer
can rightfully expect of an employee, or (d) negligence
3
Whether or not an employee’s actions amount to willful misconduct is a question of law
subject to review by this Court. Nolan v. Unemployment Comp. Bd. of Review, 425 A.2d 1203,
1205 (Pa. Cmwlth. 1981).
10
indicating an intentional disregard of the employer’s
interest or an employee’s duties or obligations.
Grieb v. Unemployment Comp. Bd. of Review, 827 A.2d 422, 425 (Pa. 2003).
An employer, seeking to prove willful misconduct by showing that the
claimant violated the employer’s rules or policies, must prove the existence of the
rule or policy, and that the claimant violated it. Walsh, 943 A.2d at 369. The
employer must establish that the employee’s actions were intentional or deliberate.
Tongel v. Unemployment Comp. Bd. of Review, 501 A.2d 716, 717 (Pa.
Cmwlth. 1985). “[A]n inadvertent violation of an employer’s rule may not
constitute willful misconduct.” Eshbach v. Unemployment Comp. Bd. of Review,
855 A.2d 943, 947 (Pa. Cmwlth. 2004). Once an employer has met its burden,
however, the burden then shifts to the claimant to show good cause as justification
for the conduct considered willful. McKeesport Hosp. v. Unemployment Comp. Bd.
of Review, 625 A.2d 112, 114 (Pa. Cmwlth. 1993). The employee establishes good
cause where his actions are justified or reasonable under the circumstances.
Chapman v. Unemployment Comp. Bd. of Review, 20 A.3d 603, 607 (Pa.
Cmwlth. 2011).
Here, Employer testified to the existence of a workplace rule providing
that the failure to secure company funds and inventory constitutes a violation of the
company’s cash handling policies. (C.R., Item No. 3, at 14.) The Board found that
Claimant violated this policy by giving a senior discount to four customers who were
under the age of fifty-five. Based on Walsh, the Board properly concluded that
Claimant’s giving of senior discounts to those under the age of fifty-five constituted
willful misconduct.
Because Employer satisfied its burden of proof, the burden shifts to the
Claimant to prove that she had good cause for violating Employer’s policy. Walsh,
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943 A.2d at 369. Claimant’s argument on this issue is somewhat disjointed.
Although Claimant argues that she knew her night shift customers and whether they
were entitled to senior discounts, she concedes that she gave the discount to three
customers under the age of fifty-five. She also explains that she was trained to do
so by seasoned employees. Further, Claimant states that, as a rule, she does not
apply discounts after customers leave. She states that she only did so when the three
customers were paying because the customers did not want to wait for a new check
and because one of the customers instructed her to keep the difference as a tip.
Claimant maintains that many customers ask her to apply the discounts and direct
her to keep the difference as a tip. The Board did not find credible Claimant’s
statement that all the customers involved instructed her to apply the discount and
keep the difference as an additional tip. Moreover, even if the customers had
instructed Claimant to do so, she still would have been in violation of Employer’s
policy because the customers were not entitled to a senior discount. Because
Claimant offers no evidence showing she had good cause for violating Employer’s
policy, the Board did not err in concluding that Claimant engaged in willful
misconduct by applying the senior discount to customers under the age of fifty-five.
For the foregoing reasons, we affirm the Board’s order.
P. KEVIN BROBSON, Judge
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Roberta J. Anderson, :
Petitioner :
:
v. : No. 1056 C.D. 2017
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 20th day of March, 2018, the order of the
Unemployment Compensation Board of Review is AFFIRMED.
P. KEVIN BROBSON, Judge