R. Wynder-Donovan v. UCBR ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Rochelle Wynder-Donovan, :
Petitioner :
:
v. : No. 1309 C.D. 2016
: Submitted: December 23, 2016
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: May 1, 2017
Petitioner Rochelle Wynder-Donovan (Claimant), pro se, petitions for
review of an order of the Unemployment Compensation Board of Review (Board).
The Board affirmed the Referee’s decision and order 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 the Board’s order.
Claimant worked for Northwestern Human Resources (Employer) as a
full-time receptionist. (Certified Record (C.R.), Item No. 8 at 4.) Employer
terminated Claimant’s employment on April 5, 2016. (Id.) Subsequently,
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(e).
Claimant filed for unemployment compensation benefits on April 6, 2016.
(C.R., Item No. 2.) The Allentown Unemployment Compensation Service Center
(Service Center) issued a determination finding Claimant ineligible for benefits for
engaging in willful misconduct without presenting sufficient information to show
that she had good cause for her actions. (C.R., Item No. 4.) Claimant appealed the
Service Center’s determination, and a Referee conducted an evidentiary hearing.
(C.R., Item No. 5.)
At the hearing before the Referee, Employer presented the testimony
of two witnesses. The first witness was Kenya Barret, a Human Resources
employee. (C.R., Item No. 8.) Ms. Barret testified that Employer terminated
Claimant’s employment for insubordination in accordance with Employer’s
company policy—a policy that Claimant signed and received and that Employer
made available to all employees via the Internet. (C.R., Item No. 8 at 5, 6, 7.)
Ms. Barret further testified that Employer terminated Claimant’s employment for
engaging in insubordination when she refused to perform the cash deposit at
Employer’s direction. (C.R., Item No. 8 at 5.)
Next, Howard Weitz, Claimant’s supervisor, testified that, because
Employer was understaffed, it temporarily reassigned certain duties that
traditionally belonged to the Business Office Manager. (C.R., Item No. 8
at 11, 12.) Among those reassigned duties was the cash deposit, which Employer
assigned to Claimant, as she had performed the task successfully on two occasions,
according to Mr. Weitz. (Id.) Mr. Weitz explained that Claimant had successfully
collected money from the front desk and deposited that money into the bank. (Id.)
Finally, Mr. Weitz testified that prior to tasking Claimant with the cash deposit
responsibility, he had, along with the former Business Office Manager, conducted
2
a meeting with Claimant for the purpose of reviewing the responsibilities that the
cash deposit task involved. (C.R., Item No. 8 at 12.)
In response, Claimant testified that she only performed the cash
deposit duty in order to increase her chances of securing the recently vacant
Business Office Manager position. (C.R., Item No. 8 at 11, 12.) After making an
effort to perform the task, however, Claimant testified that she did not feel
comfortable handling the amount of money involved because Employer failed to
train her adequately. (Id.) Moreover, Claimant testified that she did not feel safe
taking the deposits to the bank by herself and, therefore, did not want to undertake
responsibility for the deposit money. (Id.) Claimant testified that she relayed
those concerns to Employer by providing Mr. Weitz with an email to that effect.
(C.R., Item No. 8 at 22.) The email provides: “I am no longer doing the cash
deposit since I do not qualify, that is the office manager position. But I will
continue to do my work at the front desk, do the blue treatment plans for medical
records until the new staff is trained.” (C.R., Item No. 8 at CL1.)
Following the hearing, the Referee issued a decision affirming the
Service Center’s determination, finding Claimant ineligible for unemployment
compensation benefits pursuant to Section 402(e) of the Law. (C.R., Item No. 9.)
The Referee determined that Claimant engaged in insubordination by refusing to
make cash deposits as her Employer instructed. (Id.) Specifically, the Referee
found that Employer’s instructions were reasonable, as they were temporary and
Claimant had shown that she was able to complete the task successfully on two
separate occasions. (Id.) As a result, the Referee determined that Claimant’s
refusal to comply with Employer’s directive was without good cause, and,
3
therefore, Claimant’s termination for willful misconduct was in accordance with
the Law. (Id.)
Claimant appealed to the Board, and the Board affirmed the Referee’s
decision. (C.R., Item No. 11.) In so doing, the Board modified the Referee’s
findings of fact, in part. As a result, the relevant findings of fact are as follows:
1. The Claimant was employed full-time as a
Receptionist with Northwestern Human Resources,
earning $13.13 an hour. The Claimant was employed
from February 5, 2001, through April 5, 2016, her last
day worked.
2. Sometime in February 2016, the Claimant was
instructed by the Employer that the Business Office
Manager would be leaving, and they were seeking
another Business Office Manager.
3. The Claimant agreed to perform cash deposits for the
Employer on a temporary basis, an assignment
generally required of the Business Office Manager.
4. The Claimant performed two cash deposits sometime
thereafter, performing the task effectively.
5. The Claimant applied for the position of Business
Office Manager, and was interviewed by the
Employer.
6. The Employer later notified the Claimant that she was
not accepted for the position of Business Office
Manager, as she was not qualified.
7. On March 25, 2016, the Claimant’s supervisor
instructed her to perform a cash deposit; whereas the
Claimant refused to perform the task.
8. On March 28, 2016, the Claimant emailed the
[E]mployer, advising she no longer would perform the
cash deposits.
9. On March 28, 2016, the Employer again spoke with
the Claimant; whereas the Claimant again refused to
comply with the instruction to make the cash deposit.
4
10. On March 30, 2016, the Claimant again refused to
comply with the instruction to perform cash deposit.
11. On April 5, 2016, the Employer discharged the
Claimant due to her ongoing refusals to make cash
deposits as instructed by the Employer.
(Id.) Based on these facts, the Board affirmed the Referee’s decision, holding that
Claimant was ineligible for unemployment compensation benefits under
Section 402(e) of the Law. (Id.) The Board reasoned that Claimant engaged in
willful misconduct by refusing to carry out the cash deposit. Furthermore, the
Board found that Claimant’s email was a retaliatory response to not receiving the
Business Office Manager position. (Id.) As such, the Board rejected Claimant’s
assertion that she did not perform the cash deposits because she was uncomfortable
with the task. (Id.) Claimant now petitions this Court for review.
On appeal,2 Claimant presents two overarching arguments. Claimant
first argues that the substantial evidence of record does not support the Board’s
findings of fact. Specifically, Claimant appears to take issue with findings of fact
numbers 4 and 5. Claimant next argues that the Board erred in concluding that her
actions constituted willful misconduct.
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
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.
5
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). “The fact that [a party] may have produced
witnesses who gave a different version of the events, or that [the party] might view
the testimony differently than the Board is not grounds for reversal if substantial
evidence supports the Board’s findings.” Tapco Inc. v. Unemployment Comp. Bd.
of Review, 650 A.2d 1106, 1108-09 (Pa. Cmwlth. 1994). Similarly, even if
evidence exists in the record that could support a contrary conclusion, it does not
follow that the findings of fact are not supported by substantial evidence. Johnson
v. Unemployment Comp. Bd. of Review, 504 A.2d 989, 990 (Pa. Cmwlth. 1986).
Claimant first argues that substantial evidence does not support
finding of fact number 4, which provides that Claimant agreed to perform cash
deposits for the Employer on a temporary basis. Here, Mr. Weitz testified that he
had a meeting with Claimant to discuss the temporary reassignment of the
Business Office Manager responsibilities during the transition period between the
current and new Business Office Manager. (C.R., Item No. 8 at 11, 12.) One of
those responsibilities included the cash deposits. (Id.) In that regard, Mr. Weitz
testified that during the meeting, he reviewed the functions of the cash deposit task,
and Claimant subsequently agreed to perform the responsibility. (Id.)
Additionally, Claimant testified that she thought she was just performing the cash
6
deposit task temporarily. (C.R., Item No. 8 at 24.) This record evidence supports
the Board’s finding.
Claimant also argues that substantial evidence does not support
finding of fact number 5, which provides, in sum, that Claimant effectively
performed two cash deposits. Claimant’s testimony directly contradicts her
contention that such a finding is erroneous. Specifically, when the Referee asked
Claimant, “so you did [the cash deposit] two times?” Claimant responded, “[d]id it
twice.” (Id.) Furthermore, when questioned about the cash deposits on
cross-examination, Claimant testified, “but I tried it twice. I wasn’t comfortable
with it, but I tried it.” (C.R., Item No. 8 at 24.) Substantial evidence of record
exists, therefore, to support the Board’s finding.
We next address Claimant’s argument that the Board erred in
concluding that she engaged in willful misconduct. Section 402(e) of the Law
provides, in 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.” Whether
an employee’s conduct rises to the level of willful misconduct is a question of law
subject to this Court’s review. Walsh v. Unemployment Comp. Bd. of
Review, 943 A.2d 363, 368 (Pa. Cmwlth. 2008). The burden of establishing willful
misconduct is on the employer. Id. at 368-69. 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 indicating an intentional disregard of the
employer’s interest or an employee’s duties or
obligations.
7
Grieb v. Unemployment Comp. Bd. of Review, 827 A.2d 422, 425 (Pa. 2003).
Where an employer seeks to prove willful misconduct by showing that
the claimant violated the employer’s rule, directive, or instruction, the employer
must demonstrate (1) the existence of the reasonable rule, directive, or instruction
and (2) that the claimant violated it. Devine v. Unemployment Comp. Bd. of
Review, 429 A.2d 1243, 1244 (Pa. Cmwlth. 1981). Moreover, the employer must
establish that the claimant’s actions were intentional or deliberate. Tongel v.
Unemployment Comp. Bd. of Review, 501 A.2d 716, 717 (Pa. Cmwlth. 1985).
Whether the employee’s refusal constitutes willful misconduct depends upon the
reasonableness of the request and the reasonableness of the refusal. Behe v.
Unemployment Comp. Bd. of Review, 467 A.2d 1208, 1209 (Pa. Cmwlth. 1983).
Notwithstanding, there should be no finding of willful misconduct where the
claimant can show good cause for the violation. To show good cause, a claimant
must demonstrate that her actions were justifiable and reasonable under the
circumstances. Walsh, 943 A.2d at 369.
Employer argues that its directive was reasonable for two reasons.
First, Employer contends that prior to requesting that Claimant perform the cash
deposits, Claimant had agreed to perform the duty and, thereafter, had successfully
completed the task on two occasions. Second, Employer asserts that because it
was short-staffed, it needed Claimant to perform temporarily the cash deposits
until Employer could hire new employees. Because an employer has the right to
direct its workforce, which includes the right to instruct employees to take on
important tasks that they otherwise would not have to assume, Employer’s
directive was reasonable. See Hershey v. Unemployment Comp. Bd. of
Review, 605 A.2d 447, 449 (Pa. Cmwlth. 1992). Moreover, Claimant intentionally
8
violated Employer’s reasonable directive. Here, the Board found that Claimant’s
supervisor instructed her to perform a cash deposit on three separate occasions,
and, on each occasion, Claimant refused to perform the task, even at the risk of
termination. Accordingly, Employer produced credible evidence that Claimant
failed to comply with Employer’s reasonable directive to perform the cash
deposits. (Id.) Employer, therefore, sustained its burden of establishing a prima
facie case of willful misconduct.
Because Employer established its prima facie case of willful
misconduct, the burden shifted to Claimant to prove she had good cause for
deviating from the policy. As previously mentioned, in order to prove “good
cause,” a claimant must demonstrate that her actions were justifiable and
reasonable under the circumstances. Walsh, 943 A.2d at 369. Claimant seemingly
contends that her actions were justifiable under the circumstances for several
reasons. First, the cash deposits were never a part of her job responsibility.
Second, Employer failed to properly train Claimant to perform the task. Third,
Claimant was unqualified to perform the task, as evidenced by Employer’s
decision that she did not qualify for the Business Office Manager position. Finally,
Claimant did not feel comfortable handling the amount of money involved because
Employer had not adequately trained her.3 In support of her position, Claimant
relies on her testimony that she felt unsafe taking the money to the bank by herself
and, therefore, did not want to accept responsibility for the deposit money.
3
Claimant also argues in her brief that she had good cause because Employer created a
hostile work environment and overworked Claimant. Claimant, however, did not provide any
testimony during the hearing before the Referee that she considered her work environment to be
hostile or that she could not do the cash deposit because she was overworked. We, therefore,
reject these arguments.
9
Claimant also relies on an email she sent to her supervisor, Mr. Weitz, stating “I
am no longer doing the cash deposit since I do not qualify, that is the office
manager position. But I will continue to do my work at the front desk, do the blue
treatment plans for medical records until the new staff is trained.” (C.R., Item
No. 8 at CL1.) Claimant contends that the email put Employer on notice that she
was uncomfortable performing the cash deposit.
We agree with the Board that Claimant failed to demonstrate that her
actions were reasonable and justifiable under the circumstances. It is immaterial
that cash deposits had not previously been a part of Claimant’s job because, as
noted above, Employer has the right to direct the workplace. As to a lack of
training or ability, the Referee found that Claimant had successfully performed the
cash deposit on two occasions. Moreover, if Claimant required more training, she
could have requested more training from Employer. Furthermore, only after
Employer advised Claimant that it had not selected her for the Business Office
Manager position did Claimant voice her concerns about being unqualified. At all
other times, the Referee found that Claimant had capably performed the cash
deposit. Regarding Claimant feeling uncomfortable, Claimant’s email makes no
mention whatsoever of her lack of training, concern for her safety, or other
discomfort she may have felt about carrying out the cash deposits.
Instead, the Board found that Claimant’s email constituted a
retaliatory response to her not receiving the Business Office Manager position.
Although Claimant avers that her email could not have served as a retaliatory
response because of the additional shifts she worked following Employer’s
rejection of her bid for the position, Claimant, nonetheless, ignores the fact that she
failed to present credible testimony that she informed Employer that she was
10
uncomfortable with performing the cash deposit. As a result, Claimant failed to
demonstrate that her actions were reasonable and justifiable under the
circumstances, and, therefore, her actions did not constitute good cause for
engaging in willful misconduct under Section 402(e) of the Law.
Accordingly, the Board’s decision is affirmed.
P. KEVIN BROBSON, Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Rochelle Wynder-Donovan, :
Petitioner :
:
v. : No. 1309 C.D. 2016
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 1st day of May, 2017, the order of the
Unemployment Compensation Board of Review is hereby AFFIRMED.
P. KEVIN BROBSON, Judge