T. Gingrich v. UCBR

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Thomas Gingrich, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 236 C.D. 2022
Respondent : Submitted: October 21, 2022
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: January 9, 2023
Thomas Gingrich (Claimant) petitions this Court for review of the
Unemployment Compensation (UC) Board of Review’s (UCBR) February 14, 2022
order affirming the Referee’s decision that found Claimant ineligible for UC benefits
under Section 402(e) of the UC Law (Law).1 Claimant presents one issue for this
Court’s review: whether Claimant committed willful misconduct by improperly
wearing his face mask on August 26, 2020. After review, this Court affirms the
UCBR’s order.
Rite Aid of Pennsylvania, Inc. (Employer) employed Claimant as a full-
time staff pharmacist from July 24, 2016 until September 7, 2020. Employer had a
face mask policy (Policy) requiring employees to wear face coverings. Claimant
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(e) (referring to willful misconduct).
was notified of the Policy. On August 4, 2020, Claimant received a final written
warning for various issues, including failure to follow the Policy. On August 26,
2020, Claimant was wearing his face mask under his chin, not covering his mouth
or his nose. Employer’s Lead Pharmacist asked Claimant if there was any reason
that he needed a face shield. Claimant indicated that there was no need for a face
shield. Claimant did not offer any explanation to Employer as to why he was not
properly wearing his face mask. Employer discharged Claimant for violating the
Policy.
Claimant applied for UC benefits. On March 19, 2021, the Erie UC
Service Center determined that Claimant was eligible for UC benefits under Section
402(e) of the Law. Specifically, the UC Service Center concluded that, although the
facts indicated that Claimant’s actions constituted willful misconduct, Claimant had
shown good cause for his actions. Employer appealed and a Referee held a hearing
on May 28, 2021. On June 24, 2021, the Referee reversed the UC Service Center’s
determination, finding Claimant ineligible for UC benefits under Section 402(e) of
the Law. Claimant appealed to the UCBR. On February 14, 2022, the UCBR
adopted the Referee’s findings of fact and conclusions of law, and affirmed the
Referee’s decision. Claimant appealed to this Court.2
Initially,
Section 402(e) of the Law provides that an employee is
ineligible for [UC] benefits when his unemployment is due
to discharge from work for willful misconduct connected
to his work. The employer bears the burden of proving
willful misconduct in a[] [UC] case. Willful misconduct
2
“‘Our scope of review is limited to determining whether constitutional rights were
violated, whether an error of law was committed, or whether the findings of fact were unsupported
by substantial evidence.’ Miller v. Unemployment Comp. Bd. of Rev[.], 83 A.3d 484, 486 n.2 (Pa.
Cmwlth. 2014).” Talty v. Unemployment Comp. Bd. of Rev., 197 A.3d 842, 843 n.4 (Pa. Cmwlth.
2018).
2
has been defined as[:] (1) an act of wanton or willful
disregard of the employer’s interest; (2) a deliberate
violation of the employer’s rules; (3) a disregard of
standards of behavior which the employer has a right to
expect of an employee; or (4) negligence indicating an
intentional disregard of the employer’s interest or a
disregard of the employee’s duties and obligations to the
employer.
Sipps v. Unemployment Comp. Bd. of Rev., 181 A.3d 479, 481 (Pa. Cmwlth. 2018)
(emphasis omitted) (quoting Dep’t of Transp. v. Unemployment Comp. Bd. of Rev.,
755 A.2d 744, 747 n.4 (Pa. Cmwlth. 2000) (citation omitted)).
Where willful misconduct is based upon the violation of a
work rule, the employer must establish the existence of the
rule [and] its reasonableness, and that the employee was
aware of the rule. Once employer meets this burden, the
burden shifts to the claimant to prove that the rule was
unreasonable or that he had good cause for violating the
rule.
Sipps, 181 A.3d at 482 (quoting Weingard v. Unemployment Comp. Bd. of Rev., 26
A.3d 571, 574-75 (Pa. Cmwlth. 2011) (citation omitted)). Ultimately, “[t]he
question of whether conduct rises to the level of willful misconduct is a question of
law to be determined by this Court.” Scott v. Unemployment Comp. Bd. of Rev., 105
A.3d 839, 844 (Pa. Cmwlth. 2014).
Claimant argues that his violation of the Policy did not rise to the level
of willful misconduct and, even if it did, he had good cause to violate the Policy.
The law is well established:
[I]n UC cases, the [UCBR’s] findings of fact must be
supported by “[s]ubstantial evidence [which] is defined as
‘such relevant evidence which a reasonable mind would
accept as adequate to support a conclusion.’” W[.] & S[.]
Life Ins[.] Co. v. Unemployment Comp[.] [Bd.] of Rev[.],
913 A.2d 331, 335 (Pa. Cmwlth. 2006) (quoting Guthrie
v. Unemployment Comp[.] [Bd.] of Rev[.], 738 A.2d 518,
521 (Pa. Cmwlth. 1999)). ‘The [UCBR’s] findings are
conclusive on appeal so long as the record, when viewed
3
in its entirety, contains substantial evidence to support the
findings.’ W[.] & S[.] Life Ins[.] Co., 913 A.2d at 335.
This Court is bound ‘to examine the testimony in the light
most favorable to the party in whose favor the [UCBR] has
found, giving that party the benefit of all inferences that
can logically and reasonably be drawn from the testimony’
to determine if substantial evidence exists for the
[UCBR’s] findings. U[.]S[.] Banknote Co. v.
Unemployment Comp[.] [Bd.] of Rev[.], . . . 575 A.2d 673,
674 ([Pa. Cmwlth.] 1990). Moreover, ‘even if there is
contrary evidence of record, the [UCBR’s] findings of fact
are binding upon the Court where supported by substantial
evidence.’ Borough of Coaldale v. Unemployment
Comp[.] [Bd.] of Rev[.], 745 A.2d 728, 731 (Pa. Cmwlth.
2000).
Naborn v. Unemployment Comp. Bd. of Rev., 246 A.3d 373, 379-80 (Pa. Cmwlth.
2021) (quoting Cambria Cnty. Transit Auth. (Cam Tran) v. Unemployment Comp.
Bd. of Rev., 201 A.3d 941, 947 (Pa. Cmwlth. 2019)).
Here, Employer’s Policy required that each employee wear a face mask
over his/her nose and mouth and prohibited the face masks from being pulled down
under the chin or worn so that the employee’s mouth or nose is exposed. See
Reproduced Record (R.R.) at 94a-95a; see also Employer’s Ex. 6 (Ex. 6). The Policy
provided several exceptions to wearing a face mask, including a medical condition
that prevents the employee from wearing a face mask, while eating and drinking
with social distancing, when alone in a room with the door closed, and when
assisting a customer who is deaf or hard of hearing. See R.R. at 99a-100a; see also
Ex. 6. Where an employee is asserting a medical condition exception or when
assisting a deaf or hard of hearing customer, the Policy required the employee to
wear a face shield. See R.R. at 100a; see also Ex. 6. On August 4, 2020, Claimant
received a final written warning for various work issues, including his failure to
follow Employer’s Policy. See R.R. at 95a-96a; see also Employer’s Ex. 1.
4
Claimant testified:
E[mployer’s] T[ax Consultant Representative:] . . .
[Claimant], did you ever ask for a face shield?
C[laimant:] I did not ask for a face shield.
E[mployer’s] T[ax Consultant Representative:] Okay, and
you received a prior warning for failure to follow []
Employer’s . . . [P]olicy. Is that correct?
C[laimant:] Yes ma’am.
E[mployer’s] T[ax Consultant Representative:] Okay, and
did you ever provide any medical documentation stating
that you were unable to wear your [face] mask properly?
C[laimant:] No.
E[mployer’s] T[ax Consultant Representative:] Okay, and
at the time that [Employer’s Lead Pharmacist] observed
you on August the 26th of 2020, were you alone in a room?
C[laimant:] No.
E[mployer’s] T[ax Consultant Representative:] Were you
eating or drinking?
C[laimant:] No.
E[mployer’s] T[ax Consultant Representative:] You were
in the pharmacy area. Is that correct?
C[laimant:] That is correct.
R.R. at 113a.
In addition, regarding Claimant’s UC Questionnaire, Claimant
described:
E[mployer’s] T[ax Consultant Representative:] You
answered question #15 . . . [“D]id you comply with the
Employer’s order or request[?”] and you answered
[“]no[”] and you stated that it was difficult to wear a [face]
mask at all times for 12 hour shifts. Is that correct?
5
C[laimant:] Yes.
....
E[mployer’s] T[ax Consultant Representative:] Yes. So
you answered that you had difficulty to wear [sic] a [face]
mask at all times for 12 hour shifts, but at no time when
you completed this form did you state it was due to any
disability issues[3] or that you were advised by a doctor that
you couldn’t wear a [face] mask. Is that correct?
C[laimant:] I was never advised by a doctor about wearing
a [face] mask, so that is correct.
R.R. at 115a.
When further questioned by the Referee, Claimant related:
R[eferee:] Okay. I just have just [sic] a few questions.
[Claimant], you had received a final warning for not
wearing a [face] mask, is that correct, properly [sic]?
C[laimant:] I received a warning. Yes.
R[eferee:] Okay, and would you agree that you weren’t
wearing the [face] mask properly at the time of the
warning?
C[laimant:] I would disagree with the way it was stated
on her paper. I believe I covered my -- I never wore my
[face] mask under my chin the way it was described there.
....
R[eferee:] Well [Claimant] did indicate he did not comply
with the order, so I’m assuming there is some level of
concern. And I’ll skip over that. At the time you got the
warning, did you explain to [] Employer, look, my glasses
are fogging up; I need to adjust my [face] mask?[4] Did
you try to explain what was going on at that time?
3
Claimant asserted at the Referee hearing, inter alia, that the canes he uses for his partial
lack of use of his legs disability prevented him from pulling his face mask up, when it would fall
below his nose.
4
Claimant also asserted at the Referee hearing that his glasses fogging up was, inter alia,
a reason he would lower his face mask.
6
C[laimant:] I did not.
R.R. at 116a-117a. The Referee concluded:
In the present case, the credible testimony of [] [E]mployer
establishes that it has a [P]olicy which required employees
to wear a face[ ]mask. [] [C]laimant was aware of the
[P]olicy and warned about his failure to follow it. []
[C]laimant asserts that he has a physical disability in th[e]
nature of a partial lack of use of his legs requiring him to
use two canes to move around. It is not clear how this
disability affected [] [C]laimant’s ability to properly wear
his [face] mask. Moreover, even if [it] did[,] the [P]olicy
requires an employee to wear a face shield if a medical
condition precludes him from properly wearing a [face]
mask. Similarly, if an employee has problems
communicating with a customer, the employe[e] can wear
a face shield instead of a [face] mask. The Referee rejects
[] [C]laimant[’s] assertion that he needed to adjust his
[face] mask so that it was not covering [his] nose to
properly read prescriptions as his glasses would
sometimes fog from his breath. The credible testimony of
[] [E]mployer establishes that [] [C]laimant’s [face] mask
was not covering either his mouth or his nose. Further, if
[] [C]laimant was having problems with his glasses
fogging, he should have addressed that issue with []
[E]mployer so it could determine a reasonable adjustment
to the requirements of the [P]olicy. After being warned
about violation of the [P]olicy, [] [C]laimant should not
arbitrarily determine that he could remove his [face] mask
from covering his nose and/or mouth without switching to
a face shield. [] [C]laimant never provided [] [E]mployer
with a reason he could not wear a [face] mask in the
manner required by the [P]olicy. Therefore, [] [E]mployer
has established that it discharged [] [C]laimant for actions
that constitute willful misconduct connected with the
work[,] and [UC] benefits will be disallowed under
Section 402(e) of the Law.
R.R. at 123a.
“The [UCBR] is the ultimate finder of fact; questions regarding the
weight of evidence and witness credibility are solely within its province.” Lowman
v. Unemployment Comp. Bd. of Rev., 235 A.3d 278, 286 n.8 (Pa. 2020). Here, the
7
UCBR adopted the Referee’s findings of fact and conclusions of law. Viewing “the
testimony in the light most favorable to [Employer],” as we must, and “giving
[Employer] the benefit of all inferences that can logically and reasonably be drawn
from the testimony,” this Court concludes that the UCBR’s findings of fact are
supported by substantial evidence. Naborn, 246 A.3d at 379. Accordingly, this
Court is constrained to affirm the UCBR’s order.
For all of the above reasons, the UCBR’s order is affirmed.
_________________________________
ANNE E. COVEY, Judge
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Thomas Gingrich, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 236 C.D. 2022
Respondent :
ORDER
AND NOW, this 9th day of January, 2023, the Unemployment
Compensation Board of Review’s February 14, 2022 order is affirmed.
_________________________________
ANNE E. COVEY, Judge