IN THE COMMONWEALTH COURT OF PENNSYLVANIA No. CD ABC COMPANY, INC. Petitioner v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW Respondent BRIEF OF PETITIONER, ABC COMPANY, INC. APPEAL FROM A DETERMINATION OF THE UNEMPLOYMENT COMPENSATION BOARD OF REVIEW DATED, AGENCY DOCKET NO. Attorney for Petitioner
TABLE OF CONTENTS TABLE OF AUTHORITIES...ii STATEMENT OF JURISDICTION... 1 STATEMENT OF THE SCOPE AND STANDARD OF REVIEW... 2 ORDER OR OTHER DETERMINATION IN QUESTION... 3 STATEMENT OF THE QUESTIONS INVOLVED... 4 STATEMENT OF THE CASE... 5 SUMMARY OF THE ARGUMENT... 8 ARGUMENT... 9 CONCLUSION... 15 -i-
TABLE OF AUTHORITIES Opinions: Allen v. Unemployment Compensation Board of Review, 162 Pa. Cmwlth. 250, 638 A.2d 448 (1994)... 10 BMY v. Unemployment Compensation Board of Review, 94 Pa. Cmwlth. 579, 504 A.2d 946 (1986)... 11 Brandt v. Unemployment Compensation Board of Review, 537 Pa. 267, 643 A.2d 78 (1994)... 13 First Family Federal Savings and Loan Ass n v. Unemployment Compensation Board of Review, 68 Pa. Cmwlth. 578, 449 A.2d 870 (1982)... 10 Frumento v. Unemployment Compensation Board of Review, 466 Pa. 81, 351 A.2d 631 (1975)... 9,11 Hanover Concrete Co. v. Unemployment Compensation Board of Review, 43 Pa. Cmwlth. 463, 402 A.2d 720 (1979)... 11 Letterkenney Army Depot v. Unemployment Compensation Board of Review, 167 Pa. Cmwlth. 423, 648 A.2d 358 (1994)... 13 McLean v. Unemployment Compensation Board of Review, 476 Pa. 617, 383 A.2d 533 (1978)... 9 Moyer U.C. Case, 177 Pa. Super. 72, 110 A.2d 753 (1955)... 9 Peeples v. Unemployment Compensation Board of Review, 104 Pa. Cmwlth. 504, 522 A.2d 680 (1987)... 11 Raimondi v. Unemployment Compensation Board of Review, 863 A.2d 1242 (Pa. Cmwlth 2004)... 12-13 Saxton v. Unemployment Compensation Board of Review, 71 Pa. Cmwlth. 636, 455 A.2d 765 (1983)... 10 Scott v. Unemployment Compensation Board of Review, 82 Pa. Cmwlth. 113, 474 A.2d 426 (1984)... 10 Simmons v. Unemployment Compensation Board of Review, 129 Pa. Cmwlth. 315, 565 A.2d 829 (1989)... 11 -ii-
Smith v. Unemployment Compensation Board of Review, 49 Pa. Cmwlth. 394, 411 A.2d 280 (1980)... 10 Suchter v. Unemployment Compensation Board of Review, 46 Pa. Cmwlth. 1, 405 A.2d 1075 (1979)... 10 University of Pittsburgh v. Unemployment Compensation Board of Review, 55 Pa. Cmwlth. 493, 424 A.2d 559 (1980)... 9-10 Wideman v. Unemployment Compensation Board of Review, 95 Pa. Cmwth. 218, 505 A.2d 364 (1986)... 13 Williams v. Unemployment Compensation Board of Review, 109 Pa. Cmwlth. 329, 531 A.2d 88 (1981)... 10 Statute: 43 P.S. 802(e)... 9 -iii-
STATEMENT OF JURISDICTION This Court has appellate jurisdiction over this petition for review pursuant to 42 Pa.C.S. 763. -1-
STATEMENT OF THE SCOPE AND STANDARD OF REVIEW This Court s scope of review is limited to determining whether constitutional rights were violated, an error of law was committed, Appeal Board procedure was violated, or whether necessary findings of fact are supported by substantial evidence. Sheets v. Unemployment Compensation Board of Review, 708 A.2d 884 (Pa. Cmwlth. 1998). -2-
ORDER OR OTHER DETERMINATION IN QUESTION ORDER: The decision of the Referee is reversed and benefits are granted. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW William A. Hawkins, Chairman Eileen B. Melvin, Member Richard W. Bloomingdale, Member -3-
STATEMENT OF QUESTIONS INVOLVED 1. Did the Unemployment Compensation Board of Review misunderstand and misconstrue employer s contention that Employee borrowed company equipment without authorization? Suggested answer: yes 2. Did the Unemployment Compensation Board of Review err by failing to consider six acts by Employee, any of which should have disqualified him from unemployment compensation? Suggested answer: yes. -4-
STATEMENT OF THE CASE A. Form of Action and Procedural History This is an appeal from a decision of the Unemployment Compensation Board of Review granting unemployment compensation benefits. On September 10, 2004, Employer, ABC Company, Inc., terminated the employment of Richard Roe (hereinafter Employee ). On September 22, 2004, the Philadelphia Unemployment Compensation Service Center determined that Employee was ineligible for compensation. Employee filed an appeal on September 28, 2004, and the matter was assigned to Referee Thomas J. Green, who held a hearing on October 25, 2004. Employee did not appear for the hearing. On October 26, 2004, the referee issued findings of fact and conclusions of law denying the application for benefits. Employee appealed from that determination. On December 3, 2004, the legal department of the Unemployment Compensation Board of Review remanded the matter to the Referee for additional testimony on the various issues surrounding employee s termination. On January 10, 2005, the Referee held another hearing, which the employee and the employer attended. The transcript of the hearing was forwarded to the Board, which held on February 7, 2005 that Employee was entitled to unemployment compensation benefits. Employer filed this timely appeal. B. Prior Determination The prior determination consists of the decision of Referee Thomas J. Green of October 26, 2004 denying unemployment compensation benefits. -5-
C. Names of the Officials whose determinations are to be reviewed. William A. Hawkins, Eileen B. Melvin, and Richard W. Bloomingdale, Chairman and Members of the Unemployment Compensation Board of Review D. Statement of Facts Employee, Richard Roe, began to work for employer, ABC Company, Inc., as a painter in January of 1999. N.T. 10/25/04, p. 3, R. 4a. Beginning in June of 2004, Employer began a progressive disciplinary process because Employee routinely left work early without permission. Id. p. 3. Employee did not do well. In August of 2004, Employee damaged a floor in a customer s house. Id., p. 4, R. 5a. When asked to return to rectify the problem, Employee refused. Id., p. 4, R. 5a. A series of other incidents occurred that included gross insubordination, inappropriate sexual remarks, fighting, foul language, unauthorized use of company property and the like. On September 9, 2004, Employer prepared a termination letter containing the following charges: 1. Unexcused absences and incorrect reporting of time. Employee repeatedly took time off from work without authorization and reported that he had worked a full day when, in fact, he had not. 2. Insubordinate, abuse or offensive language. Employer gave employee repeated verbal warnings, and at least two occasions Employee yelled and cursed at Employer. 3. Refusal to Follow a Directive. Employee took a company truck after being specifically told to leave it at the shop, a direct violation of company policy and insubordination. -6-
4. Inappropriate Sexual Remarks. Employee made inappropriate sexual remarks about a customer s daughter. 5. Fighting. Employee fought with another employee. 6. Damage to Floor. Employee damaged a client s floor and then refused to remedy the damage. 7. Borrowing equipment without authorization; and 8. Working for Customers on the side. R. 36a. Employer delivered this letter to Employee on September 10, 2004 and terminated him. E. Facts Pertaining to the Agency s Errors and Petitioner s Preservation of the Issues. All of the issues raised in this appeal are detailed in Employee s Petition for Review. F. Statement of the Order Under Review On February 7, 2005 the Unemployment Compensation Board of Review entered an order reversing the decision of the Referee and granting the Employee unemployment compensation benefits. -7-
SUMMARY OF ARGUMENT This Court should reverse the decision of the Unemployment Compensation Board of Review because it misunderstood and misconstrued one of the grounds for Employee s termination. The Board held that Employee was not guilty of theft of Employer s property. However, Employer merely charged Employee with unauthorized borrowing of it. The Board further erred when it failed to consider six additional grounds for Employer s termination. Although the Board gave no reason for this omission, most of these disqualifying acts took place shortly before the termination and were not remote therefrom. To the extent that remoteness is an issue, it is easily explained by Employer s progressive discipline policy. -8-
ARGUMENT FOR PETITIONER The Unemployment Compensation Act provides that an Employee will be ineligible for compensation due to discharge for willful misconduct: An employee shall be ineligible for compensation for any week in which his unemployment is due to his discharge for temporary suspension from work for willful misconduct connected with his work irrespective of whether or not such work is in employment as defined in this act... 43 P.S. 802(e). The statute does not define willful misconduct. In McLean v. Unemployment Compensation Board of Review, 476 Pa. 617, 383 A.2d 533 (1978) and Frumento v. Unemployment Compensation Board of Review, 466 Pa. 81, 351 A.2d 631 (1975), the Supreme Court adopted the Superior Court s definition in Moyer U.C. Case, 177 Pa. Super. 72, 110 A.2d 753 (1955): Id. Willful misconduct has been held to comprehend (1) an act of wanton or willful disregard of the employer s interests, (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 of the employee s duties and obligations to the employer. In the case at bar, Employer enumerated a series of events, each of which resulted in the decision to terminate Employee. R. 36a. These included: 1. Unexcused absences and incorrect reporting of time. Employer terminated Employee for repeatedly taking time off from work without authorization and reporting that he had worked a full day when, in fact, he had not. The law is clear that habitual tardiness, without cause, particularly after warnings to be on time, is disqualifying. University of Pittsburgh v. Unemployment Compensation Board of Review, 55 Pa. -9-
Cmwlth. 493, 424 A.2d 559 (1980). More importantly, a knowing falsehood or misrepresentation bearing upon an employee s employment constitutes a departure from standard of behavior an employer can rightfully expect from an employee and is disqualifying. Smith v. Unemployment Compensation Board of Review, 49 Pa. Cmwlth. 394, 411 A.2d 280 (1980); Scott v. Unemployment Compensation Board of Review, 82 Pa. Cmwlth. 113, 474 A.2d 426 (1984). For example, deliberately falsifying the reason for one s absence constitutes willful misconduct. Suchter v. Unemployment Compensation Board of Review, 46 Pa. Cmwlth. 1, 405 A.2d 1075 (1979). 2. Insubordinate, abuse or offensive language. Employer stated that he gave repeated verbal warnings, and at least two occasions Employee yelled and cursed at him. R. 36a. An employee s insubordinate, abusive or offensive language also constitutes willful misconduct in disregard of a reasonably expected standard of behavior. Even a single instance of such vulgarity may be disqualifying. Williams v. Unemployment Compensation Board of Review, 109 Pa. Cmwlth. 329, 531 A.2d 88 (1981). See also: First Family Federal Savings and Loan Ass n v. Unemployment Compensation Board of Review, 68 Pa. Cmwlth. 578, 449 A.2d 870 (1982); Brandt v. Unemployment Compensation Board of Review, 537 Pa. 267, 643 A.2d 78 (1994); Allen v. Unemployment Compensation Board of Review, 162 Pa. Cmwlth. 250, 638 A.2d 448 (1994); Saxton v. Unemployment Compensation Board of Review, 71 Pa. Cmwlth. 636, 455 A.2d 765 (1983). 3. Refusal to Follow a Directive. Employee took a company truck after being specifically told to leave it at the shop, a direct violation of company policy and -10-
insubordination. R. 36a. A deliberate violation of a rule and a directive is disqualifying. Frumento v. Unemployment Compensation Board of Review, 466 Pa. 81, 351 A.2d 631 (1975); BMY v. Unemployment Compensation Board of Review, 94 Pa. Cmwlth. 579, 504 A.2d 946 (1986). 4. Inappropriate Sexual Remarks. Employee made inappropriate sexual remarks about a customer s daughter. Once again, inappropriately vulgar remarks are disqualifying. See discussion, supra. See also: Hanover Concrete Co. v. Unemployment Compensation Board of Review, 43 Pa. Cmwlth. 463, 402 A.2d 720 (1979) 5. Fighting. Employee fought with another employee. A discharge resulting from an employee s participation in a physical altercation or assault will normally lead to disqualification. Peeples v. Unemployment Compensation Board of Review, 104 Pa. Cmwlth. 504, 522 A.2d 680 (1987). 6. Damage to Floor. Employee damaged a client s floor and then refused to remedy the damage. Negligence of such degree as to manifest substantial disregard of the employer s interest or the employee s duties and obligations to the employer is disqualifying. Simmons v. Unemployment Compensation Board of Review, 129 Pa. Cmwlth. 315, 565 A.2d 829 (1989). Furthermore, refusal to remedy the damage is insubordination which, as previously discussed, is disqualifying. Frumento v. Unemployment Compensation Board of Review, supra. on the side. 7. Borrowing equipment without authorization; and 8. Working for Customers -11-
The Board only addressed the most recent two: 7. The claimant was discharged on September 10, 2004 for stealing the employer s property and for doing private jobs for the employer s clients. Finding of Fact, 7. However, even Employee admitted that he was terminated for a variety of reasons set forth in the termination letter. N.T. 1/10/05, p. 7, R. 20a. The Board s finding that Employer fired Employee for only two reasons is not based upon the record and is, therefore, not supported by substantial evidence. Furthermore, Employer did not accuse Employee of stealing his property. Rather, employer accused him of tak[ing] items home with [him] that belong to the company, without authorization. (R. 36a), i.e., borrowing items. Employee admitted at the hearing that he had borrowed items: R. So on the 10 th when he fired you, did he ask you if you had any of his equipment in your possession? C. Yes he did. We walked to the car. I gave him his grinder and masker. R. And the masker and the grinder were both in the car. C. That was it. N.T. 1/10/05, p. 21, R. 34a. The Board misunderstood the nature of the accusation by translating unauthorized borrowing into theft. For this reason alone, this Court should overturn the decision below. The Board ignored reasons 1 through 6, supra., presumably on the basis that consideration of the others would be barred by remoteness. However, the law clearly provides that the Board and this Court may consider the more remote acts of misconduct so long as there is an explanation. In its recent opinion in Raimondi v. Unemployment -12-
Compensation Board of Review, 863 A.2d 1242 (Pa. Cmwlth 2004), this Court reviewed the remoteness principle and determined that it did not apply so long as there was a plausible reason for the delay. This Court relied first on Wideman v. Unemployment Compensation Board of Review, 95 Pa. Cmwth. 218, 505 A.2d 364 (1986) in which an employee was fired for tardiness. Fifty days had elapsed between his last infraction and his termination. The claimant contended that the remoteness doctrine barred the employer from relying on tardiness as a cause for termination. However, the Board held and this Court agreed that the remoteness doctrine did not apply because the claimant's supervisor had taken immediate action by recommending claimant's discharge, and "any delay was occasioned by the nature of the administrative review process." Id. at 367. In Letterkenney Army Depot v. Unemployment Compensation Board of Review, 167 Pa. Cmwlth. 423, 648 A.2d 358 (1994), this Court similarly held that a delay of fifty days between the employee's misconduct and the employer's issuance of a disciplinary letter did not defeat the denial of compensation. The employer found illegal drugs on the employee s person, and employee immediately entered a rehabilitation center, where he remained for seventeen days. After the employee s release from rehabilitation, the employer allowed him to return to work, but in a different position, pending the employer's decision concerning disciplinary action. Employer later proposed termination. This court reversed the award of compensation, stating that cases such as this do not turn on length of time alone. In the case at bar, the acts of insubordination and violation of rules took place in August of 2004, two weeks before the actual termination. N.T. 10/25/04, p. 4, R. 5a. Therefore, they were not remote. To the extent that remoteness is even an issue it is -13-
explained by virtue of the progressive discipline policy explained by Employer at the hearing. Id. Employer terminated Employee for a long history of job-related misconduct, the final act of which the Board misunderstood. Even if the Board s determination of the borrowing issue were to stand, which it should not, Employee is guilty of such an extended list of acts of insubordination, violation of company policies, and outright boorish behavior that took place so close to the termination that a finding that one or two were not proved should not render Employee qualified. Stated differently, Employee is guilty of eight categories of disqualifying behavior, most of which took place shortly before the termination and any one of which should disqualify the claim. The Board selected two and found that they were not proved. The Board misunderstood one of the two charges. Even if the Board s finding concerning these two is upheld, Employee is guilty of six remaining disqualifying events or classes of events, each of which would independently disqualify Employee. Most took place so close to the termination that they could not be considered remote under any reckoning. Even if they were remote, the delay is explained by the progressive discipline policy. In short, the Board erred first when it misconstrued one of the charges. It further erred by failing to even consider the remaining charges. We cannot tell from the record why it did so. To the extent that it relied upon the remoteness doctrine, it erred because most of the acts were not remote and, in any event, the remoteness can be explained by the progressive discipline policy. We request that this Court reverse the decision below and enter an order disqualifying Employee from benefits. In the alternative, we request that this Court -14-
remand the case for a rehearing on the borrowing issue, which the Board clearly misunderstood, and a rehearing on the six remaining disqualifying issues. CONCLUSION The Board misunderstood and misconstrued one of the bases for Employee s termination. Furthermore, it erred when it failed to consider six additional bases therefore. This Court should reverse the decision below and either declare that Employee is ineligible because he is guilty of willful misconduct or instruct the Board to reconsider both the borrowing basis and the six additional bases for termination. Respectfully submitted, BY: Attorney for Petitioner -15-