M.R. Davis v. UCBR ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Marsha R. Davis, :
Petitioner :
: No. 818 C.D. 2018
v. :
: Submitted: May 24, 2019
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: July 26, 2019
Marsha R. Davis (Claimant) petitions for review from the May 24, 2018
order of the Unemployment Compensation Board of Review (Board), which affirmed
a referee’s decision finding that she was ineligible for unemployment compensation
benefits pursuant to section 402(e) of the Unemployment Compensation Law (Law). 1
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(e). In relevant part, section 402(e) states that an employee shall be ineligible for compensation
for any week in which her unemployment is due to willful misconduct connected with her work.
Willful misconduct, though not delineated in the Law, has been defined by the courts of this
Commonwealth as: (1) a wanton and willful disregard of the employer’s interests; (2) a deliberate
violation of the employer’s rules; (3) a disregard of the standards of behavior that an employer
rightfully can expect from its employees; or (4) negligence that manifests culpability, wrongful
intent, or evil design, or an intentional and substantial disregard of the employer’s interests or the
(Footnote continued on next page…)
From March 27, 2017, to September 22, 2017, Claimant was employed
by Voca Corporation of New Jersey (Employer) as a Direct Support Professional.
Employer terminated Claimant for a verbal incident that occurred with a coworker on
September 17, 2017, and for conduct that she committed when she conversed with
her manager on September 22, 2017. Claimant applied for unemployment
compensation (UC) benefits with Erie UC Service Center (UC Service Center). On
November 11, 2017, the UC Service Center determined that she did not commit
willful misconduct under section 402(e) of the Law and, thus, granted her benefits.
Employer appealed, requesting a hearing before a referee. Subsequently,
on January 19, 2018, the referee conducted a hearing via telephone at which Claimant
testified. Employer presented the testimony of two witnesses, Kolaeeole Rasheed,
Employer’s Clinical Supervisor, and Kenny Adebowale, Employer’s Reservation
Manager.
After concluding the hearing, the referee issued the following pertinent
findings of fact:
2. [Employer’s] policy prohibits fighting or otherwise
disrespectful conduct, and [Claimant] was aware of the
policy.
3. [Employer] had warned [Claimant] that she was to
accept the decisions of her supervisor and not use the chain
of command to question those decisions.
4. On 9/17/17, [Claimant’s] coworker attempted to start an
argument with [Claimant], but [Claimant] did not argue
with her.
(continued…)
employee’s duties and obligations. Oliver v. Unemployment Compensation Board of Review, 5
A.3d 432, 438 (Pa. Cmwlth. 2010).
2
5. [Claimant] had requested 9/22/17 off in advance, and the
request was granted, and [Claimant’s] manager arranged for
another employee to cover [Claimant’s] shift.
6. On 9/22/17, [Claimant] called [Adebowale,] her
supervisor[,] and informed [Adebowale] that she might
want to work, as her ride had not shown up yet and she
might be available after all.
7. [Adebowale] attempted to tell [Claimant] that the shift
was already covered, and that she could not keep the shift
open while waiting to see if [Claimant] was going to come
in or not.
8. [Claimant] became upset, raised her voice, argued with
the manager, and hung up on [Adebowale].
9. [Claimant] called her supervisor’s boss, the clinical
manager [i.e., Rasheed], but only got his voice mail.
10. [Claimant] called [Adebowale] back to request the
phone number of [Rasheed’s] supervisor.
11. [Adebowale] refused to give [Claimant] the phone
number, so [Claimant] again argued with her manager, and
hung up on her again.
12. [Claimant] was discharged for arguing with a coworker
on 9/17/17 and unprofessional and disrespectful conduct on
9/22/17.
(Findings of Fact (F.F.) Nos. 2-12.)
In concluding that Claimant committed willful misconduct, the referee
reasoned as follows:
[Employer] has not established that [Claimant] argued with
a coworker on 9/17/17. Neither of [Employer’s] witnesses
saw or heard the alleged fight, and [Claimant] denies that
one occurred. However, [Employer] did establish that
[Claimant] acted disrespectfully and unprofessionally
towards her manager on 9/22/17. [Claimant] argued with
3
her manager, attempted to go over her in the chain of
command, and hung up on her manager twice. [Claimant’s]
conduct violated [Employer’s] policy, and [Claimant] had
no adequate justification for her conduct. Accordingly,
[Claimant] is ineligible for benefits under [s]ection 402(e)
of the Law.
(Referee’s decision at 3.)
Claimant appealed to the Board. By decision and order dated May 24,
2018, the Board affirmed, adopting and incorporating the referee’s findings and
conclusions as its own.
Before this Court,2 Claimant argues that finding of fact number 4 “is in
direct conflict with” finding number 12 because the Board determined that her
behavior on September 17, 2017, did not rise to the level of willful misconduct and
Employer terminated her for this reason. (Claimant’s brief at 11.)
Upon review, we discern no incompatibility between the two findings.
Here, Employer terminated Claimant for two independent and separate violations of
its policy. (Notes of Testimony (N.T.) at 3-4; F.F. No. 12.) While the Board
determined that Employer failed to establish that Claimant committed willful
misconduct on September 17, 2017, the Board also determined that Claimant
committed willful misconduct on September 22, 2017. It is settled law that “a
claimant who has been discharged for multiple reasons is disqualified from receiving
benefits even if only one of those reasons amounts to willful misconduct.” Glenn v.
Unemployment Compensation Board of Review, 928 A.2d 1169, 1172 (Pa. Cmwlth.
2007). Consequently, Claimant’s argument lacks merit.
2
Our scope of review is limited to determining whether constitutional rights have been
violated, whether an error of law has been committed, and whether findings of fact are supported by
substantial evidence. Hollingsworth v. Unemployment Compensation Board of Review, 189 A.3d
1109, 1112 n.5 (Pa. Cmwlth. 2018).
4
Claimant next contends that the evidence was insufficient to establish
that she committed willful misconduct and violated Employer’s policy on September
22, 2017, by being disrespectful or argumentative with her supervisors.
The employer has the burden of proving that it discharged an
employee/claimant for willful misconduct. Owens v. Unemployment Compensation
Board of Review, 748 A.2d 794, 797 (Pa. Cmwlth. 2000). In Farag v. Unemployment
Compensation Board of Review (Pa. Cmwlth., No. 1902 C.D. 2013, filed April 25,
2014) (unreported),3 the employer had a policy that, inter alia, required employees to
be respectful to their supervisors, and the employer terminated the claimant/employee
for an incident where she “became agitated and disrespectful to her supervisors.” Id.,slip op. at 2. In that case, the claimant asked her supervisor “if she could take over
the shift of another employee . . . who had recently tendered her resignation.” Id.After the supervisor informed the claimant that the employer was going to eliminate
the position due to budget constraints, the claimant, in a very loud manner, stated
“but I have seniority.” Id. During a subsequent meeting with the supervisor, the
claimant became “irritated,” “angry,” “very insubordinate,” and was “yelling in the
office.” Id. at 2-3. Although the claimant never used offensive, vulgar, or
threatening language, the Court in Farag concluded that she engaged in willful
misconduct.4
3
We cite Farag for its persuasive value. See Section 414(a) of the Commonwealth Court's
Internal Operating Procedures, 210 Pa. Code §69.414(a).
4
As a general matter, on one hand, an employee’s use of abusive, offensive, or vulgar
language toward a supervisor is a form of insubordination that may constitute willful misconduct;
this is true even if the employer has not adopted a specific work rule prohibiting such language and
even if there is only a single instance in which such language is used. See, e.g., Brown v.
Unemployment Compensation Board of Review, 49 A.3d 933, 937 (Pa. Cmwlth. 2012); Leone v.
Unemployment Compensation Board of Review, 885 A.2d 76, 81 (Pa. Cmwlth. 2005); Viglino v.
(Footnote continued on next page…)
5
Here, Employer’s policy prohibits “abusive, disrespectful, or threatening
conduct or speech towards any individuals of staff, fellow employees, Supervisor
staff, vendors, and visitors.” (N.T. at 6.) Concerning the incident that the Board
found to have constituted willful misconduct, Adebowale testified that Claimant
requested and received permission to be off from work on September 22, 2017. (N.T.
at 9-10.) Adebowale testified that on September 22, 2017, Claimant called hher and
stated that she may not need to take the day off and inquired into the possibility of
whether she could work. (N.T. at 9, 15.) Adebowale informed Claimant that the shift
was filled and that she would have to take the day off. (N.T. at 9.) Adebowale said
that, upon receiving this information, Claimant became distraught. Specifically,
Claimant started “screaming and yelling,” and was “very unprofessional on the
phone,” “speaking . . . in an angry tone.” (N.T. at 6, 10, 13.) Claimant herself
testified that she then told Adebowale that she, Claimant, “will not be disrespected,”
“will end this call,” and “that’s what [she] did.” (N.T. at 16.) According to
Adebowale and Rasheed, Claimant, after seeking to contact Rasheed (Adebowale’s
(continued…)
Unemployment Compensation Board of Review, 525 A.2d 450, 453 (Pa. Cmwlth. 1987); Dodson v.
Unemployment Compensation Board of Review, 437 A.2d 1080, 1082 (Pa. Cmwlth. 1981). On the
other hand, unnecessary and defiant debate with a supervisor over a reasonable directive may also
constitute insubordination and, thus, willful misconduct. See Strong v. Unemployment
Compensation Board of Review, 459 A.2d 57, 59 (Pa. Cmwlth. 1983); see also Isabella v.
Unemployment Compensation Board of Review, 429 A.2d 1220, 1222-23 (Pa. Cmwth. 1980).
Conceptually, this case and Farag represent an offshoot of these two doctrines. Broadly
speaking, this case and Farag may be viewed as standing for the proposition that an employee’s
verbal reaction to an unfavorable decision of a supervisor, when considered in terms of its tone and
manner of conveyance, may be sufficiently combative and irascible that it is abusive in its form and
context and without regard to its content.
6
supervisor) to contest the decision of Adebowale, called Adebowale back, continued
her outburst, and hung up on her once again. (N.T. at 12, 14, 16-18.)
Viewing this evidence in the light most favorable to Employer, see
Gibson v. Unemployment Compensation Board of Review, 760 A.2d 492, 494 (Pa.
Cmwlth. 2000), we conclude that Claimant engaged in willful misconduct. As found
by the Board, Claimant committed conduct that was substantially similar to—and
materially indistinguishable from—that of the claimant in Farag.5 Therefore,
Claimant’s argument to the contrary fails.
Finally, Claimant asserts that she acted in a professional and polite
manner and that Adebowale instigated the situation and is the one who acted in a
disrespectful manner. However, while Claimant offered testimony to this effect, our
precedent is clear that “the fact that a claimant may have given a different version of
events . . . is not grounds for reversal if substantial evidence supports the Board’s
findings.” Ellis v. Unemployment Compensation Board of Review, 59 A.3d 1159,
1164 n.4 (Pa. Cmwlth. 2013); see Chapman v. Unemployment Compensation Board
of Review, 20 A.3d 603, 610 (Pa. Cmwlth. 2011). Having determined that the
Board’s relevant findings are supported by the requisite amount of evidence, we
conclude that Claimant’s contention does not merit relief.
5
We note that during the hearing, Adebowale and Rasheed testified that prior to the
incidents at issue, Employer warned Claimant that she was to be respectful when conversing with
fellow employees and supervisors and to stay within the chain of command; Claimant received
“coaching” sessions for these issues; and in June 2017, Claimant “received a fourth coaching on
professionalism and verbal argument.” (N.T. at 6-8.) Under the Law, “[a] conclusion that the
employee has engaged in disqualifying willful misconduct is especially warranted in . . . cases
where . . . the employee has been warned and/or reprimanded for prior similar conduct.” Ellis v.
Unemployment Compensation Board of Review, 59 A.3d 1159, 1163 (Pa. Cmwlth. 2013); see Allen
v. Unemployment Compensation Board of Review, 638 A.2d 448, 450 (Pa. Cmwlth. 1994); Jarema
v. Unemployment Compensation Board of Review, 173 A.2d 698, 699 (Pa. Super. 1961).
7
Accordingly, we affirm the Board’s order.
________________________________
PATRICIA A. McCULLOUGH, Judge
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Marsha R. Davis, :
Petitioner :
: No. 818 C.D. 2018
v. :
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 26th day of July, 2019, the order of the
Unemployment Compensation Board of Review, dated May 24, 2018, is hereby
affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge