R. Beckham v. UCBR ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ron Beckham, :
Petitioner :
:
v. : No. 1735 C.D. 2019
: Submitted: November 12, 2020
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge (P.)
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: December 11, 2020
Petitioner Ron Beckham (Claimant) petitions for review of an order of the
Unemployment Compensation Board of Review (Board). The Board affirmed a
decision of a Referee, thereby denying Claimant unemployment compensation
benefits pursuant to Section 402(e) of the Unemployment Compensation Law
(Law),1 relating to willful misconduct. For the reasons set forth below, we affirm.
Claimant applied for unemployment compensation benefits after separating
from his position as a production employee at Dietz & Watson (Employer).
(Certified Record (C.R.), Item Nos. 2, 3.) The Altoona UC Service Center (Service
Center) determined that Claimant was ineligible for unemployment compensation
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended,
43 P.S. § 802(e).
benefits for the waiting week ending on June 29, 2019. (C.R., Item No. 7.) Claimant
appealed the Service Center’s determination. (C.R., Item No. 8.)
A Referee conducted a hearing, at which Claimant failed to appear.
(C.R., Item No. 11 at 1.) Employer’s witness, Joe Johnson (Johnson), provided the
only testimony at the hearing. (Id.) Johnson testified that Claimant started working
for Employer as a full-time production employee on July 24, 2017. (Id. at 3.)
Employer suspended Claimant from work on June 25, 2019, after an incident
occurred during his shift on the previous day. (Id.) Johnson stated that Claimant
rinsed out a dirty vat that had been filled with raw meat and then dumped the dirty
water from the vat into a drain in the floor, on top of which drain were racks of fresh
pepperoni. (Id. at 3-4.) The dirty water hit the wall near the drain and splashed onto
the pepperoni, contaminating it. (Id. at 4.) Ultimately, Employer had to dispose of
the pepperoni.2 (Id. at 4-5.) Johnson maintained that, while Employer does not have
a specific policy concerning the destruction of product, Claimant’s actions were
unacceptable by any standard. (Id. at 4-5.) Employer’s cameras recorded the
incident, and Johnson and the Referee watched the video at the hearing. (Id. at 4.)
As they watched the video, Johnson pointed out that there was another drain near
the one where Claimant had dumped out the vat, and the other drain did not have
any product around it. (Id. at 4-5.) Johnson stated that, while dumping water into
the other drain would not have been more acceptable, Claimant likely would not
have been terminated because no product would have been destroyed. (Id.) Johnson
further noted that, had a United States Department of Agriculture inspector
witnessed Claimant pouring out the dirty water and splashing it on the pepperoni,
the factory could have been shut down due to the risk of contamination. (Id. at 5.)
2
The exact loss total was not determined. (C.R., Item No. 11 at 5.)
2
After the incident, Johnson spoke with Claimant on the phone, and Claimant did not
provide any reason or justification why he poured the dirty water in the drain. (Id.)
Instead, Claimant apparently admitted wrongdoing and asked for his job back. (Id.)
Johnson testified that Claimant suffers from amnesia as a result of brain surgery in
2017, and that he and Employer were aware of Claimant’s condition. (Id. at 5-6.)
Johnson stated that Claimant initially started working in January of 2017, but he left
in order to have the brain surgery. (Id. at 5-6.) After Claimant recovered, Employer
rehired Claimant in July of 2017. (Id.) When he returned to work, Claimant did not
provide Johnson or Employer with documents or information stating that he needed
accommodations. (Id.) There was also nothing to indicate that Claimant’s behavior
was at all out of place when he returned. (Id. at 6.) Johnson, therefore, did not
believe that Claimant’s health condition triggered the incident. (See id. at 5-6.)
Employer terminated Claimant’s employment on June 27, 2019. (Id. at 3.)
Following the hearing, the Referee issued a decision, denying Claimant
unemployment compensation benefits under Section 402(e) of the Law.
(C.R., Item No. 12.) In so doing, the Referee made the following findings of fact:
1. The claimant was last employed as a full-time Production Employee
with the employer from July 24, 2017[,] until June 27, 2019 . . . .
2. The claimant had previously been working for the employer but had
gone on a medical leave of absence.
3. The claimant was rehired on July 24, 2017.
4. The claimant did not inform the employer about any limitations
which would have allowed the claimant to be given accommodations.
5. On June 25, 2019, the claimant was cleaning a dirty bag filled with
raw meat.
6. The claimant cleaned the bag with a hose and then took the bag along
[sic] some contents and dumped them in a place where pepperoni
packages were kept on the site.
3
7. The claimant[’]s actions were caught on camera.
8. The claimant was aware or should have been aware that his actions
would cause the product to be contaminated.
9. When questioned[,] the claimant said he did not know why he did it
and gave no response except that he knew that it was wrong.
10. On June 27, 2019, the employer discharged the claimant for his
conduct.
(Id. at 1-2.) In its reasoning, the Referee concluded that Claimant’s conduct was
below the standard of behavior Employer had a right to expect from Claimant.
(Id. at 3.)
Claimant appealed the Referee’s decision, arguing that he missed the
hearing because of his health condition. (C.R., Item No. 13 at 4.) The Board
remanded the case for another hearing so the Referee could receive Claimant’s
evidence regarding his nonappearance and the merits of Claimant’s appeal.
(C.R., Item Nos. 14, 15, 16.) The Board stated that the testimony from the second
hearing, as well as the rest of the record, would thereafter be sent to the Board for a
final decision. (C.R., Item No. 15 at 1.)
Claimant and Johnson appeared at the second hearing.
(C.R., Item No. 17 at 1.) Claimant testified that his health condition caused him to
miss the first hearing. (Id. at 3-4.) Claimant suffers from memory loss and
migraines multiple times a day, and he was going through a migraine at the time of
the hearing. (Id. at 4.) Due to his memory loss, Claimant did not realize he missed
the hearing until he received a notice in the mail from the Board. (Id.) Claimant
provided the Referee with a copy of a medical report detailing his condition.
(Id at 5.) The Referee then proceeded to question Claimant regarding his
employment and the incident. Claimant testified that, after his surgery, his doctor
cleared him for full-time employment with no limitations or accommodations on his
4
ability to work. (Id. at 6.) Claimant essentially testified that he was unaware what
he did was wrong. (Id. at 7-8.) He stated that he did not pour water on the pepperoni
but that he poured it directly down the drain. (Id. at 8.) Claimant noted that, even if
water had gotten on the pepperoni, the pepperoni is subsequently washed and peeled
before being sold. (Id.) Claimant, therefore, did not understand how he could have
contaminated the product. (Id.) Claimant admitted that he called Johnson afterward
to apologize and ask for his job back, but he testified that he was unaware what he
did was wrong. (Id. at 8-9.) After watching the video recording from Employer’s
cameras, Claimant stated it was not him in the video. (Id. at 12-13.) Claimant
admitted that he was working at the time the video was taken, but he noted that the
person’s face in the video is not visible and Claimant denied it was him. (Id.)
When Johnson asked Claimant about their phone conversation after the incident and
about Claimant’s apparent admission to pouring the water in the drain near the
pepperoni, Claimant argued that he never admitted to the act: “No, I did not admit
to doing that. That’s not me on that tape, sir.” (Id. at 13.)
The Board determined that Claimant had good cause for missing the initial
hearing, but it affirmed the Referee’s decision:
The [Board] remanded to accept testimony regarding the claimant[’]s
failure to appear at the first hearing. The claimant failed to appear
because of brain surgery and memory loss. The Board finds this is good
cause for the nonappearance. Therefore, the Board has considered the
testimony and evidence on the merits offered at the remand hearing.
In giving consideration to the entire record, the Board concludes that
the determination made by the Referee is proper under the [Law3] as
interpreted by the appellate courts. Therefore, the Board adopts and
incorporates the Referee[’]s conclusions. The Board amends Finding
of Fact 4 to read, [“]The claimant’s doctor cleared him for full duty with
3
43 P.S. §§ 751-918.10.
5
no limitations.[”] The Board adopts and incorporates the remainder of
the Referee’s findings.
At the remand hearing, the claimant denied that it was him on video.
The Board determines credibility. The Board resolves all conflict in
testimony in favor of the employer. The claimant . . . failed to establish
good cause for his actions.
(C.R., Item No. 18 at 1.) Claimant now petitions this Court for review.
On appeal to this Court,4 Claimant argues: (1) the Board’s findings of fact are
not supported by substantial evidence; and (2) the Board made an error of law in
determining that Claimant’s actions constituted willful misconduct.
We first address whether there is substantial evidence in the record to
support the Board’s findings of fact. In an unemployment compensation case,
the findings of fact made by the Board are binding on appeal if the record,
viewed comprehensively, contains substantial evidence to support those findings.
Brandt v. Unemployment Comp. Bd. of Rev., 643 A.2d 78, 79 (Pa. 1994).
Substantial evidence has been defined by this Court as “relevant evidence upon
which a reasonable mind could base a conclusion.” Johnson v. Unemployment
Comp. Bd. of Rev., 502 A.2d 738, 740 (Pa. Cmwlth. 1986). In reviewing the record
to determine whether substantial evidence exists, we examine the evidence and
testimony in the light most favorable to the prevailing party, giving that party the
benefit of any inferences logically and reasonably drawn from the evidence. Id.
As the ultimate finder of fact, the Board has authority to make determinations of
credibility which are “not subject to re-evaluation on judicial review.”
Peak v. Unemployment Comp. Bd. of Rev., 501 A.2d 1383, 1388 (Pa. 1985)
4
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. 2 Pa. C.S. § 704.
6
(quoting Miller v. Unemployment Comp. Bd. of Rev., 405 A.2d 1034, 1036 (Pa.
Cmwlth. 1979)).
Claimant’s substantial evidence argument is essentially
twofold: (1) substantial evidence does not exist to support finding of fact
number 7—i.e., that Claimant’s actions were caught on video—because the
evidence of record does not establish that Claimant was the individual on
Employer’s video pouring water in the drain; and (2) even if it was Claimant on the
video, substantial evidence does not exist to support finding of fact number 8—i.e.,
that Claimant was or should have been aware that his actions would contaminate
Employer’s product. We address each in turn.
Claimant contends that Employer did not prove it was Claimant on the video,
because the individual’s face on the video is not visible and numerous other
employees travel the area in question. With regard to the video evidence, the Board
determined that Claimant was not credible in denying it was him on the video.
Furthermore, Claimant admitted twice during his testimony that he poured the water
down the drain in question.5 Claimant’s second admission directly addressed the
video: “I didn’t pour the [water] directly onto your product. Your product is on a
rack. They hang it up like this. You—on the video, it will show you that I poured
this [water]—the water into a drain. The video will show that.” (C.R., Item No. 17
at 9.) It was only after Claimant watched the video, in which the individual’s face
5
Claimant testified that he was directed by his supervisor to obtain a pail or vat to hold
meat. (C.R., Item No. 17 at 7.) After obtaining the pail, Claimant stated that he rinsed it out and
poured the water into a drain: “I did not pour no water [on the pepperoni]—I poured the water
into the drain and they said that I contaminated the meat.” (Id. at 8.) Furthermore, Johnson
testified that during a phone conversation with Claimant after the incident, Claimant admitted to
him that he dumped water down the drain. (C.R., Item No. 11 at 5; see also C.R., Item No. 17
at 8-9.)
7
is not visible, that Claimant argued it was not him. (Id. at 12-13.) It is apparent that
the Board did not find credible Claimant’s last-minute identity challenge.
Accordingly, we conclude that the Board’s finding that Claimant’s actions were
caught on camera is supported by substantial evidence of record.
We next consider whether substantial evidence supports the Board’s
determination that Claimant was or should have been aware that his conduct would
contaminate Employer’s product. Claimant argues that Employer did not present
any competent evidence or testimony that Claimant was or should have been aware
that dumping water in the drain would contaminate Employer’s product. For the
reasons set forth below, we disagree.
At the outset, Johnson testified at the first hearing that Claimant should have
been aware that his actions would result in the contamination of Employer’s product:
[Johnson]: After it was, the meat was empty out of the tank, he brought
it over to an area it should not have been in. He cleaned it out with a
hose and he walked down the hallway and dumped it under [sic] into a
drain. . . .
[Referee]: What did he dump? The water?
[Johnson]: The dirty water and the contents of the vat. He dumped it
into a drain, and on top of the drain were racks of pepperoni. So, the
dirty water hit the wall and slashed [sic] on to the pepperoni, destroying
that product.
[Referee]: Maybe he didn’t see the pepperoni?
[Johnson]: He did.
(C.R., Item No. 11 at 3-4.)
At the second hearing, the Referee questioned Claimant regarding his state of
mind at the time of the incident. Claimant testified that there are drains in every
room in the factory where water can be poured out. (C.R., Item No. 17 at 8.) After
having worked in his position for two-and-a-half years, Claimant testified he was
8
aware that the product stored on the racks would subsequently be washed and
cleaned in 100-degree water, and peeled and sliced before being sold to consumers.
(Id.) Claimant stated that the meat stored on the racks often had mold on it, and,
therefore, it was critical that the meat was cleaned prior to sale. (Id.) For these
reasons, Claimant could not understand how his act of pouring water down the drain,
even if some of the water splashed onto the meat, could contaminate the meat to the
point it had to be destroyed. (Id.)
Employer presented the testimony of Johnson, who testified that Claimant
should have been aware of the potential for contamination because the drain was
directly underneath Employer’s product. Employer introduced video evidence of
the incident, which supports Johnson’s testimony concerning the proximity of the
drain to the product. Although Claimant challenged Johnson’s testimony at the
second hearing, the Board resolved all conflicting testimony in favor of Employer.
(C.R., Item No. 18 at 1.) The Board, therefore, did not find Claimant’s testimony
credible that he was not aware of the potential for contamination. The Board makes
determinations of credibility that are not subject to reevaluation by this Court.
Peak, 501 A.2d at 1388. Accordingly, we conclude the Board’s finding that
Claimant was or should have been aware that his actions would result in the
contamination of Employer’s product is supported by substantial evidence of record.
Claimant next argues that the Board made an error of law in determining that
his actions constituted willful misconduct. Under Section 402(e) of the Law, an
individual is ineligible for unemployment compensation benefits if the discharge or
temporary suspension from work is due to willful misconduct. The term willful
misconduct is not defined by statute. We have explained that, in the unemployment
context, willful misconduct is: “(1) the wanton or willful disregard of the employer’s
9
interests; (2) the deliberate violation of the employer’s rules; (3) the disregard of the
standards of behavior which an employer can rightfully expect from an employee;
and (4) negligence demonstrating an intentional disregard of the employer’s interests
or the employee’s duties and obligations to the employer.” Allen v. Unemployment
Comp. Bd. of Rev., 189 A.3d 1128, 1134 (Pa. Cmwlth. 2018). It is well-established
that “[w]hether conduct rises to the level of willful misconduct is a question of law
to be determined by this Court.” Brown v. Unemployment Comp. Bd. of Rev.,
49 A.3d 933, 937 (Pa. Cmwlth. 2012). An employer bears the initial burden of
proving an employee engaged in willful misconduct. Adams v. Unemployment
Comp. Bd. of Rev., 56 A.3d 76, 78-79 (Pa. Cmwlth. 2012). If willful misconduct is
based upon a violation of an employer’s policy or work rule, the employer must
establish the rule’s existence, its reasonableness, and that the employee was aware
of the rule when he violated it. Brown, 49 A.3d at 937. A violation of an employer’s
policy or work rule is not necessary to establish willful misconduct; an employer
may establish willful misconduct if an employee’s conduct is obviously below the
standard of behavior an employer has a right to expect from an employee or if the
conduct is clearly inimical to an employer’s interests. Biggs v. Unemployment
Comp. Bd. of Rev., 443 A.2d 1204, 1205-06 n.3 (Pa. Cmwlth. 1982). Furthermore,
in order to demonstrate willful misconduct, an employer must present evidence
“indicating that the conduct was of an intentional and deliberate nature.”
Grieb v. Unemployment Comp. Bd. of Rev., 827 A.2d 422, 426 (Pa. 2003).
An employee’s negligence will only constitute willful misconduct where “it is of
such a degree or recurrence as to manifest culpability, wrongful intent, or evil design,
or show an intentional and substantial disregard of the employer’s interest or of the
employee’s duties and obligations to the employer.” Id. at 425-26 (internal
10
quotations omitted). Finally, in determining whether willful misconduct has been
committed, we consider all the circumstances surrounding the employee’s conduct.
Rebel v. Unemployment Comp. Bd. of Rev., 723 A.2d 156, 158 (Pa. 1998).
Claimant argues that his actions did not rise to the level of willful misconduct
because Employer did not establish a policy or work rule that Claimant violated.
If anything, Claimant argues his conduct was an isolated act of negligence that did
not fall below the standard of behavior Employer had a right to expect from
Claimant. The Referee, however, relying on “competent and credible first-hand
testimony,” found that Claimant was or should have been aware of the possibility
for contamination and that Claimant knew that his actions were wrong.
(C.R., Item No. 12 at 2-3.) Based upon those findings, the Referee and Board did
not err in concluding that Claimant engaged in willful misconduct.
To reiterate, a violation of Employer’s policy or work rule is not necessary to
find that Claimant engaged in willful misconduct. Claimant’s contention to the
contrary, therefore, is incorrect. We disagree with Claimant’s assertion that the
Board erred in failing to conclude that his conduct was an isolated act of negligence
that did not rise to the level of willful misconduct. The Board found that Claimant
was or should have been aware that his actions would result in the contamination of
Employer’s product. Knowingly and unnecessarily risking the destruction of
Employer’s product constitutes conduct below the standard of behavior Employer
had a right to expect from Claimant.
For the foregoing reasons, we affirm the order of the Board.
P. KEVIN BROBSON, Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ron Beckham, :
Petitioner :
:
v. : No. 1735 C.D. 2019
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 11th day of December, 2020, the order of the Unemployment
Compensation Board of Review is AFFIRMED.
P. KEVIN BROBSON, Judge