T.M. Norris v. UCBR

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Tina M. Norris, :
Petitioner :
:
v. : No. 1757 C.D. 2016
: Submitted: March 31, 2017
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SIMPSON FILED: June 13, 2017
Tina M. Norris (Claimant), representing herself, petitions for review
from an order of the Unemployment Compensation Board of Review (Board) that
affirmed a referee’s decision and denied her unemployment compensation (UC)
benefits under Section 402(e) of the Unemployment Compensation Law (Law).1
She argues the Board erred in concluding she did not perform tasks within her job
description. She also asserts that her conduct did not warrant the first of three
written pre-termination warnings. Upon review, we affirm.
I. Background
Claimant worked for Bluestem Brands, Inc. (Employer) as a telephone
sales agent, taking catalog orders from customers and answering customer
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(e) (relating to willful misconduct).
questions2 for almost two years until her discharge from employment. In addition
to her hourly rate, Claimant received commissions on her sales.
Claimant applied for UC benefits, which the local service center
denied. Claimant appealed to a referee.
The referee held a hearing where Claimant testified on her own behalf
and her supervisor (Supervisor) testified on behalf of Employer. The record
reflects the following.
On three occasions between February and April 2016, Employer
verbally coached Claimant regarding her customer service. Referee’s Hr’g, Notes
of Testimony (N.T.), 8/15/16, at 9; 15. Claimant admitted she “receive[d]
warnings for continually transferring people.” N.T. at 15.
In May 2016, Claimant sent Employer an email objecting to
performing customer service duties. She complained that such duties unfairly reduced
her compensation as a sales agent because she had less time to earn commissions.
Employer issued Claimant a final written warning on June 13, 2016.
After two more incidents of transferring calls to customer service the following week,
Employer terminated Claimant’s employment. At the hearing, Supervisor played
recordings of Claimant’s last two improper transfers. Supervisor testified the job
description remained consistent throughout Claimant’s tenure. Id. at 17.
2
Employer maintained separate phone lines and call areas for sales and customer service.
2
Claimant testified she was not responsible for customer service calls,
and handling such calls, without earning a commission, constituted an unreasonable
burden and “wage theft.” N.T. at 15. She claimed her termination was retaliatory
because she was in litigation with Employer regarding the alleged overtime and
wage theft. Id. When asked about the recordings of the two improper transfers,
Claimant maintained she had non-specific “phone issues.” Id. at 16. She also
challenged the accuracy of the recordings of the two improper transfers because
the recordings did not indicate the date or time of call.
Based on the evidence, the referee found Claimant was required to
answer misdirected customer service calls, and was permitted to refer more
complicated calls to the customer service area. Referee’s Dec., 8/17/16, Findings of
Fact (F.F.) Nos. 3-4. He also found Claimant received three verbal warnings
regarding her transfers of calls to the customer service area. F.F. No. 5. Then, she
received a final written warning for unnecessary transfers of calls to customer
service, and making unprofessional comments to customers. F.F. No. 6. At that
time, Employer advised Claimant additional misconduct would result in termination
of her employment. F.F. No. 7. After Claimant transferred additional calls to
customer service on June 15 and 17, following the final warning, Employer
discharged her. F.F. Nos. 9-11.
The referee determined Claimant committed willful misconduct,
concluding she received repeated warnings regarding her transfers of customer
service calls, and she continued to improperly transfer calls without good cause.
Claimant appealed to the Board.
3
The Board affirmed, adopting and incorporating the referee’s findings
and conclusions, with the omission of Finding of Fact No. 8, (that three final
warnings would result in termination), as irrelevant. The Board specifically did
not credit Claimant’s testimony that she attempted to make volume adjustments
before transferring calls to customer service. In addition, it reasoned:
[w]hile [C]laimant argues that she was a telephone sales agent
and was not hired to answer customer service calls, the Board
notes the calls [she] transferred to customer service were sales
related and were not outside of her job duties. [C]laimant has
not established good cause for transferring sales related calls
to customer service.
Bd. Op., 10/6/16, at 1. The Board disregarded extra-record facts Claimant
submitted on appeal. Claimant petitioned for review to this Court.
II. Discussion
On appeal,3 Claimant contends the first written warning should be
voided, such that she received only two written warnings, not three. She also
asserts Employer did not establish grounds for issuing the last two warnings to
warrant her termination. Specifically, she challenges the veracity of Employer’s
recordings because they do not indicate the time or date of the calls. She maintains
that customer service duties are not part of her job description as a sales agent. In
addition, she argues Employer unfairly imposed customer service duties on female
sales agents when they are paid less than male customer service representatives.
3
Our review is limited to determining whether the necessary findings of fact were
supported by substantial evidence, whether errors of law were committed, or whether
constitutional rights were violated. Doyle v. Unemployment Comp. Bd. of Review, 58 A.3d
1288 (Pa. Cmwlth. 2013).
4
A. Willful Misconduct
An employee is ineligible for UC benefits in any week, “[i]n which
[her] unemployment is due to [her] discharge or temporary suspension from work
for willful misconduct connected with [her] work....” 43 P.S. §802(e). Although
not statutorily defined, the courts define “willful misconduct” as: “(1) wanton and
willful disregard of an employer’s interests; (2) deliberate violation of rules; (3)
disregard of the standards of behavior which an employer can rightfully expect
from an employee; or, (4) negligence showing an intentional disregard of the
employer’s interests or the employee’s duties and obligations.” Johns v.
Unemployment Comp. Bd. of Review, 87 A.3d 1006, 1009 (Pa. Cmwlth. 2014)
(citing Grieb v. Unemployment Comp. Bd. of Review, 827 A.2d 422 (Pa. 2002)).
The employer bears the initial burden of establishing a claimant engaged in willful
misconduct. Id. Whether a claimant’s actions constitute willful misconduct is a
question of law fully reviewable on appeal. Id. at 1010.
In UC cases, the Board is the ultimate fact-finder and is empowered to
resolve all conflicts in the evidence, witness credibility, and weight accorded to the
evidence. Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949
A.2d 338 (Pa. Cmwlth. 2008). It is irrelevant whether the record contains evidence
to support findings other than those made by the fact-finder; the critical inquiry is
whether there is substantial evidence to support the findings actually made. Id.Where substantial evidence supports the Board’s findings, they are conclusive on
appeal. Id. In addition, we examine the testimony in the light most favorable to
the party who prevailed before the fact-finder, giving that party the benefit of all
reasonable inferences from the testimony. Id.5
There is no dispute that Claimant repeatedly, after verbal and written
warnings, transferred calls she received as a sales agent to customer service. N.T.
at 9. Indeed, Claimant admitted she was repeatedly counseled and warned about
her customer service and transferring calls to customer service representatives
instead of assisting the customers herself. N.T. at 15. The record is also clear that
Claimant received calls from customers on the sales line and transferred them to
customer service representatives.
During the hearing, Supervisor testified regarding Claimant’s refusal
to perform customer service duties. She also played recordings of two improper
transfers that led to Claimant’s discharge. Both recordings were of short duration.
In the first call, the recording reflects that when a customer had difficulty hearing
Claimant, she transferred the call to customer service. Id. at 7. In the second call,
Claimant started verifying information for an order, and when she could not
understand the customer, she transferred the call to customer service. Id.
Relevant here, there is no indication on the recordings that Claimant
attempted to adjust the volume before transferring the calls. In the first call,
Claimant did little more than answer the phone before transferring the customer. Id.
Handling inbound customer calls was an essential part of Claimant’s
duties as a telephone sales agent. Employer’s job description includes customer
assistance, and answering customer inquiries, to provide a courteous customer
experience. See Certified Record, (C.R.) Item No. 8 (Appeal of Notice of
Determination). Sales agents’ essential duties include referring “more complicated
6
customer service questions to the Customer Service area.” Id. (emphasis added);
see F.F. No. 4.
Here, the Board credited Supervisor’s testimony regarding Claimant’s
job duties. The Board specifically did not credit Claimant’s testimony that she
attempted volume adjustment prior to transfers. Bd. Op. at 1. Such credibility
determinations are beyond our review on appeal. Ductmate.
Further, the Board’s findings are supported by the record. The
recordings show Claimant did not transfer either call in response to a complicated
customer service question. Supervisor testified the recordings were only two
examples of Claimant’s misconduct. The testimony of both Claimant and
Supervisor supports that Employer provided several verbal coachings regarding
Claimant’s conduct prior to issuing a final warning. See C.R., Item No. 3
(Employer’s Submission to Service Center, Ex. 8, Final Discharge). The warning
history shows four occasions on two days in which Claimant transferred sales calls
to customer service and engaged in unprofessional conduct with customers. Id.
Claimant’s argument that she was entitled to three “final” warnings
before discharge lacks merit. There is no evidence Claimant’s discharge violated
Employer’s disciplinary policy. Claimant also submitted no support for her belief
that she was entitled to three written warnings prior to discharge. She conceded
she received several verbal warnings regarding customer service issues.4 N.T. at 15.
4
Employer also counseled Claimant for attendance issues and verbal threats. See
Certified Record, Item No. 3.
7
Because Employer established Claimant refused to handle customer
service calls in accordance with her job duties, and repeated coaching and warnings,
it met its burden to prove willful misconduct.
B. Good Cause
Once the employer meets its burden of proving willful misconduct,
the burden shifts to the claimant to prove she had good cause for her actions.
Dep’t of Corr. v. Unemployment Comp. Bd. of Review, 943 A.2d 1011 (Pa.
Cmwlth. 2008). Good cause is established “where the action of the employee is
justifiable or reasonable under the circumstances ....” Id. at 1015 (quoting
Frumento v. Unemployment Comp. Bd. of Review, 351 A.2d 631, 634 (Pa. 1976)).
Here, Claimant attempts to justify her refusal for performing customer
service duties based on perceived inequities between different types of employees.
She claims Employer’s division of labor between sales agents and customer service
representatives is unfair, particularly when female sales agents are paid less per
hour than male customer service representatives. She also argues customer service
calls reduce her ability to earn commissions.
Disagreement with an employer’s decisions regarding wages and
assignments among staff is not good cause to justify refusal to perform certain
duties. Waltz v. Unemployment Comp. Bd. of Review, 533 A.2d 199 (Pa.
Cmwlth. 1987) (wage and overtime disputes are properly addressed in separate
forum, and do not constitute good cause for refusal). A claimant’s belief that she
is entitled to overtime compensation is also not good cause for refusal. Id.8
Further, there is no record evidence to support Claimant’s allegation
that Employer’s division of labor is gender-based. Critically, Claimant did not
develop the record to support such a claim. She bore the burden of proving the
reason for her refusal to perform customer service duties. Dep’t of Corr.
We agree with the Board that Claimant did not establish good cause
for transferring telephone calls she received as a sales agent to the customer service
area. The Board did not credit Claimant’s testimony that handling such calls
exceeded her duties as a sales agent. It specifically found “the calls [Claimant]
transferred to customer service were sales related and were not outside of her job
duties.” Bd. Op. at 1. As a result, she lacked good cause for transferring them to
customer service.
The record is clear that despite receiving multiple verbal and written
warnings regarding her handling of incoming calls, Claimant continued to transfer
sales-related calls to customer service without good cause. N.T. at 8-9; F.F. Nos.
5-7, 9-10. Therefore, the Board did not err in determining Claimant was ineligible
for UC benefits based on her willful misconduct. See also Wilson v.
Unemployment Comp. Bd. of Review (Pa. Cmwlth., No. 1007 C.D. 2013, filed
December 4, 2013) (unreported) (holding that transferring customer calls in order
to avoid customer service responsibilities without good cause constitutes
disqualifying willful misconduct).
9
III. Conclusion
For the foregoing reasons, we affirm the Board’s order.
ROBERT SIMPSON, Judge
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Tina M. Norris, :
Petitioner :
:
v. : No. 1757 C.D. 2016
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 13th day of June, 2017, the order of the Unemployment
Compensation Board of Review is AFFIRMED.
ROBERT SIMPSON, Judge