D. Sease v. UCBR ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dione Sease, :
Petitioner :
:
v. : No. 1200 C.D. 2017
: Submitted: February 23, 2018
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: April 10, 2018
Dione Sease (Claimant), pro se, petitions for review of an Order of the
Unemployment Compensation (UC) Board of Review (Board), which affirmed a
Referee’s Decision finding Claimant ineligible for benefits under Section 402(e) of
the UC Law1 because Claimant was terminated for willful misconduct. Having
reviewed the record, we find substantial evidence exists to support the Board’s
findings and discern no error of law or abuse of discretion. Accordingly, we affirm.
Claimant filed an application for benefits on January 15, 2017, stating he was
terminated for insubordination from his part-time position as cook at Latshaw &
Menditto, Inc. (Employer), which is a parent company of a Kentucky Fried Chicken
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(e).
(KFC) franchise. Claimant stated in his application for benefits that he was sexually
harassed by another employee but he was the one written up. (Internet Initial Claims
form, Record (R.) Item 2.) He also stated that he wanted to file a complaint because
“nothing gets done in th[e] store.” (Id.) Finally, he stated he asked for a raise and
was told he was “too demanding” and was “terminated for telling them what to do.”
(Id.)
Following Claimant’s application, Employer was sent a questionnaire in
which it confirmed that Claimant was terminated for refusing to comply with
Employer’s order or request and initiating an act of insubordination. Employer’s
version of events leading up to Claimant’s termination differed somewhat from
Claimant’s rendition. According to written statements from Employer’s Director of
Operations and General Manager submitted in response to the questionnaire,2 they
did meet with Claimant who expressed concern about whether another employee
with whom Claimant was involved in an altercation was disciplined. Claimant then
advised that he was also sexually harassed. When advised by General Manager that
Employer would investigate, Claimant became angry, started raising his voice, used
profanity, and demanded a raise and that he be called “[s]ir.” (Employer
Questionnaire, R. Item. 3.) After Claimant left the meeting, he returned to the
kitchen where the Director of Operations found him using profanity and discussing
the meeting with another employee. After Claimant refused the Director of
Operations’ order to go home twice, the Director of Operations advised Claimant
that he was terminated. When Claimant still refused to leave the premises, the police
2
The written statements were admitted into evidence at the subsequent Referee’s hearing
over Claimant counsel’s objection. The Referee ruled that the Director of Operations and General
Manager offered corroborating testimony that was consistent with the written statements.
2
were called, but Claimant left prior to their arrival. Before leaving, Claimant yelled
more profanity and that he would be back. (Id.)
Based upon the initial application, Employer’s questionnaire, and an oral
interview with Claimant, the local UC Service Center found Claimant ineligible for
benefits. (Notice of Determination, R. Item 5.) Claimant appealed, and a telephone
hearing was scheduled before a Referee.
At the hearing, Employer’s Director of Operations and General Manager
testified consistent with their written statements. Claimant, who was then
represented by counsel, also testified. Claimant testified that one week earlier he
had been sexually harassed by the employee with whom he was involved in the
altercation. He advised Director of Operations and General Manager about the
alleged harassment at their meeting and they responded they would look into it. He
also testified that he was upset with being called “kitchen” instead of by his name.
Claimant stated he was simply telling a co-worker about his meeting with Employer
and denied using any profanity.
Following the hearing, the Referee issued a decision that affirmed the Service
Center’s determination and made the following findings of fact:
2. On January 13, 2017, the claimant asked for a meeting with the
employer’s director of operations and also the general manager to
discuss an altercation that the claimant had had with a co-worker
about a week before the meeting.
3. The employer gave the claimant a write-up for being angry and
belligerent in the workplace, but the claimant was upset about the
write-up, and he also asked the employer what discipline was given
to the other employee involved in the incident.
4. The director of operations, who was hearing about the incident for
the first time, told the claimant that disciplinary matters were
private and that they would not discuss the other employee’s
3
discipline with the claimant nor would they discuss his disciplinary
action or the employer’s investigation with the other party.
5. The claimant became angry and argumentative, and he demanded
that the other employee be immediately terminated, and the
claimant also complained that the employer had never given him a
raise.
6. When the subject returned to the complaint that the claimant had
made against the other employee, the claimant responded with
profanity, and after the employer indicated that the employer would
take the claimant’s complaint seriously, [] the claimant told the
employer to “drop it, just drop it, I don’t want to file a complaint.”
7. The claimant then told the director of operations and the general
manager that he wanted to be addressed as “Sir,” while in the
kitchen.
8. The director of operations had never heard this particular issue
mentioned before.
9. The claimant then left the meeting room and went back into the
kitchen where he began discussing what he had spoken to the
employer about the employee with whom the claimant had had the
altercation.
10. The director of operations came back into the kitchen and told the
claimant not to discuss the other matter with the third employee.
11. The claimant began using profanity, so the director of operations
told the claimant to go home.
12. The claimant refused to go home and used more profanity after
which the director of operations insisted that the claimant go home.
13. When the claimant refused to go home again, the director of
operations directed the general manager to call the police.
14. After the general manager had called the police, the claimant
eventually left, but up until that point, the claimant had refused to
obey the director of operation’s instructions.
4
(Referee Decision, Findings of Fact (FOF) ¶¶ 2-14.)
The Referee further explained, in the “Reasoning” portion of his Decision,
that General Manager first learned of the alleged harassment at the meeting and
indicated she would investigate the matter. Yet, Claimant became “rude and
argumentative.” (Id. at 3.) As for allegedly being called “kitchen,” the Referee
stated there was no evidence that Employer directly called Claimant “kitchen,” and
instead the term was used more generally to refer to those in the kitchen. The
Referee called Claimant’s conduct on his last day at work “egregious.” (Id.) The
Referee found Director of Operations and General Manager both credibly testified
that Claimant used profanity. He found Claimant’s denial of same not credible and
stated that “[C]laimant’s denial also detracts from the credibility of his other
assertions made during his testimony.” (Id.) In addition, the Referee stated that
Employer was not obligated to discuss the discipline of other co-workers with
Claimant. Furthermore, the Referee found that there was not much that the
Employer could say about the alleged sexual harassment because Director of
Operations had just learned about the allegation and had not yet had time to
investigate it. Finally, the Referee found the Employer had a reasonable expectation
that Claimant not discuss the matter with others. In short, the Referee concluded
“[C]laimant’s insubordinate behavior coupled with his use of profanity in a
restaurant served by the public was certainly contrary to the [E]mployer’s best
interests even apart from the [E]mployer’s rules.” (Id. at 4.)
5
Claimant appealed to the Board, which affirmed, adopting and incorporating
the Referee’s findings and conclusions as its own. (Board Order, R. Item 15.)
Claimant now petitions for review of the Board’s Order.3
On appeal,4 Claimant appears to challenge the Board’s decision based on a
lack of substantial evidence and that he had good cause for his actions.5 In response,
the Board argues there is substantial evidence to support its findings of fact and the
conclusion that Claimant engaged in willful misconduct.
Substantial evidence is “relevant evidence upon which a reasonable mind
could base a conclusion.” Henderson v. Unemployment Comp. Bd. of Review, 77
A.3d 699, 718 (Pa. Cmwlth. 2013). “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. “It is
3
On February 15, 2018, Claimant filed a motion requesting oral argument in this matter.
A per curiam order was issued the next day directing this matter be submitted on briefs. Because
the order did not expressly address Claimant’s motion, although it effectively denied it, so that the
record is clear, we will dismiss the motion as moot.
4
Our 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. Johns v. Unemployment Comp. Bd. of Review, 87 A.3d 1006, 1009 n.2 (Pa. Cmwlth.
2014).
5
Claimant’s Brief is not well developed. The entirety of his “Argument” section is set
forth below:
[Director of Operations] said he fired me for insubordination. When I asked how I
was being insubordinate, he said by being “too demanding.” I even called the store
when I left and that[’]s what he said. He heard me talking to another employee
about me getting sexually har[]assed and fired me 5 minutes after me, him and
[General Manager] spoke in the office. When I called the main office to speak with
[the owner], [Director of Operations] answers, laughs, and says “[the owner]
do[es]n’t want to speak to you.”
(Claimant’s Br. at 9.)
6
irrelevant whether the record contains evidence to support findings other than those
made by the fact-finder; the critical inquiry is whether there is evidence to support
the findings actually made.” Ductmate Indus., Inc. v. Unemployment Comp. Bd. of
Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008). Finally, it bears emphasizing that
“the Board is the ultimate fact-finder in unemployment compensation matters and is
empowered to resolve all conflicts in evidence, witness credibility, and weight
accorded the evidence.” Id. On appeal, the Board’s findings are conclusive so long
as the record taken as a whole contains substantial evidence to support them.
Henderson, 77 A.3d at 718.
First we address whether Claimant’s actions constitute willful misconduct.
Section 402(e) of the UC Law provides that a claimant is ineligible for benefits 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.” 43 P.S.
§ 802(e). Although “willful misconduct” is not defined in the UC Law, our Supreme
Court has held that the term means:
(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.
Navickas v. Unemployment Comp. Bd. of Review, 787 A.2d 284, 288 (Pa. 2001).
We have found that insubordination and the use of profanity towards a
supervisor, if unprovoked, constitutes willful misconduct. Saxton v. Unemployment
Comp. Bd. of Review, 455 A.2d 765, 766 (Pa. Cmwlth. 1983). Likewise, failing to
follow an employer’s reasonable directives constitutes willful misconduct, unless
the employee can demonstrate good cause for his actions. Pearson v. Unemployment
7
Comp. Bd. of Review, 954 A.2d 1260, 1264 (Pa. Cmwlth. 2008), abrogated on other
grounds by Maher v. Unemployment Comp. Bd. of Review, 983 A.2d 1264 (Pa.
Cmwlth. 2009). “Furthermore, a single refusal to follow instructions can constitute
willful misconduct even when the claimant had a good work record.” Id.
Whether conduct amounts to willful misconduct requires consideration of “all
of the circumstances, including the reasons for the employee’s noncompliance with
the employer’s directives.” Rebel v. Unemployment Comp. Bd. of Review, 723 A.2d
156, 158 (Pa. 1998). An employer bears the burden of proving that a claimant
engaged in willful misconduct. Navickas, 787 A.2d at 287. Once the employer
meets its burden, the burden shifts to the claimant to show good cause for that
conduct. Henderson, 77 A.3d at 719. An employee can demonstrate good cause by
showing his actions are justified or reasonable under the circumstances. Id.
With the above principles in mind, we turn to this case. The Referee, whose
findings of fact the Board adopted, found Director of Operations had repeatedly
asked Claimant to go home after Claimant used profanity, and Claimant refused,
leaving only after police had been summoned. (FOF ¶¶ 11-14.) Director of
Operations testified that Claimant became “very angry” and “belligerent” during
their meeting and was swearing. (Hr’g Tr. at 5.) After Claimant returned to the
kitchen, he continued to use profanity, according to Director of Operations. (Id. at
6.) Director of Operations asked Claimant twice to go home, but Claimant refused.
(Id.) Instead, Claimant began using more profanity and became combative, at which
point Director of Operations terminated him for insubordination.6 (Id.) General
Manager’s testimony was consistent with Director of Operations’ testimony. She
testified that she remained in the office after the meeting but could still hear Claimant
6
Claimant denied using profanity, but the Referee and Board found Claimant was not
credible. We are bound by that credibility determination. Ductmate Indus., Inc., 949 A.2d at 342.
8
from the kitchen area. (Id. at 10.) This is substantial evidence to support the Board’s
findings.
Essentially what Claimant is asking this Court to do is to reassess the
credibility of the witnesses and believe his version of the events over Employer’s
account, which we do not have the authority to do. As noted above, the Board is
the ultimate fact-finder and is charged with resolving conflicts in evidence and
making credibility determinations. Ductmate, 949 A.2d at 342. The relevant inquiry
is not whether the record contains evidence to support findings other than those
made, but whether there is evidence to support the findings actually made. Id. Based
upon the testimony of Director of Operations and General Manager, which the
Referee and Board credited, and the testimony of Claimant, which was not credited,
there is substantial evidence to support the findings.
These findings also are sufficient to conclude that Claimant engaged in willful
misconduct. Claimant’s repeated use of profanity, as found by the Board, constitutes
willful misconduct. Saxton, 455 A.2d at 766. Claimant’s refusal to comply with
Director of Operations’ repeated requests that Claimant leave the premises because
of his behavior also is sufficient to constitute willful misconduct. In Pearson, we
held that a claimant’s refusal to leave the premises when he was repeatedly asked
constituted willful misconduct. 954 A.2d at 1264.
Although Employer satisfied its burden of showing Claimant engaged in
willful misconduct, the analysis does not end there. We must consider whether
Claimant showed good cause for his conduct. Henderson, 77 A.3d at 719. Claimant
appears to argue that his conduct was justified because he was sexually harassed by
another employee and was merely expressing frustration with what he perceived as
9
Employer’s inaction.7 The Board, however, adopted the Referee’s findings that
Employer had just learned of the alleged harassment at that meeting and indicated it
would investigate. This finding, too, is supported by Director of Operation’s
testimony, (Hr’g Tr. at 17), as well as Claimant’s own testimony that he reported the
alleged harassment to Employer on January 13, 2017, the day of the meeting, and
was told Employer would look into it, (id. at 14). Employer’s response was
reasonable given what it knew at the time, whereas Claimant’s conduct – using
profanity loudly and becoming belligerent and combative – was not. Claimant did
not show good cause for his conduct.
Based upon our review of the record, we conclude there is substantial
evidence to support the Board’s findings. Because Employer met its burden of
showing that Claimant engaged in willful misconduct and Claimant did not
demonstrate good cause for his actions, we affirm the Board’s Order.
_____________________________________
RENÉE COHN JUBELIRER, Judge
7
To the extent Claimant alleges he had good cause because he was called “kitchen,” we
disagree. As the Referee and Board found, there is no evidence that Claimant was directly called
“kitchen.” Claimant’s testimony shows the term was used more generally, such as “tell the kitchen
we need” something, referring broadly to those who work in the kitchen. (Hr’g Tr. at 15.)
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dione Sease, :
Petitioner :
:
v. : No. 1200 C.D. 2017
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
NOW, April 10, 2018, the Order of the Unemployment Compensation Board
of Review, entered in the above-captioned matter, is AFFIRMED. Claimant’s
motion requesting oral argument is DISMISSED AS MOOT.
_____________________________________
RENÉE COHN JUBELIRER, Judge