Opinion
No. 934 C.D. 2014
05-14-2015
City Mission, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner City Mission (Employer) petitions for review of an order of the Unemployment Compensation Board of Review (Board). The Board affirmed a Referee's decision, thereby granting unemployment compensation benefits to Debabrata Misra (Claimant). The Board determined that Claimant had not engaged in disqualifying willful misconduct. For the reasons set forth below, we affirm the Board's order.
Claimant filed for unemployment compensation benefits after Employer terminated his employment on October 16, 2013. The Duquesne UC Service Center (Service Center) issued a determination finding Claimant ineligible for benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law), relating to willful misconduct. Claimant appealed the Service Center's determination.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
A Referee conducted a hearing, at which she considered whether Claimant's unemployment was due to discharge for willful misconduct. The Referee determined that Claimant's misconduct connected with his employment was not willful. Thus, the Referee concluded that Claimant was eligible for benefits. Employer appealed to the Board.
The Board affirmed the Referee's determination that Claimant was eligible for benefits. In so doing, the Board made the following findings of fact:
1. The claimant was last employed as a full-time director of development by the Washington City Mission from March 1, 2013 at a final rate of $57,500.00 per year and his last day of work was October 10, 2013.
2. The employer is governed by a Board of Directors, which maintains the authority to discharge employees.
3. On or about September 30, 2013, the employer noticed a large amount of data stored on its computer system. An investigation revealed that the data had been stored by the claimant.
4. Further investigation determined that the data had originated from the claimant's previous employers.
5. The employer requested that the claimant provide the employer with evidence that he had permission to possess this data, but did not provide the claimant with a deadline.
6. The claimant explained that he would need a few days because one of [the] individuals had retired and was difficult to reach.
7. On October 10, 2013, the employer held a meeting with the claimant and suspended the claimant pending approval from the Board to discharge the claimant.(Certified Record (C.R.), Item No. 11 at 1-2.)
8. On October 16, 2013, the employer discharged the claimant by letter and did not provide a reason for the discharge.
9. The claimant was discharged because he had not obtained the requested permissions from his previous employers to possess the data in question.
The Board, in concluding that Claimant did not engage in willful misconduct, reasoned:
The Pennsylvania courts have held that where an employee is discharged for refusing or failing to follow an employer's directive, both the reasonableness of the demand and the reasonableness of the employee's refusal must be examined. Where the action of the employee is justifiable or reasonable under the circumstances, it cannot be considered willful misconduct.
In this case, the employer found data on its computer system which appeared to belong to the claimant's prior employers. The employer requested that the claimant produce evidence that he had permission to retain the data. The Board finds the claimant's testimony credible that he was not provided with a deadline and that he told the employer that one of the individuals he needed to contact had retired and it would take time. On October 10, 2013, the employer met with the claimant and required that he produce the documentation and the claimant did not have it. The employer suspended the claimant immediately pending authorization from the Board to discharge the claimant. On October 16, 2013, the claimant was discharged by letter and not provided with a reason for the discharge.
The employer argues that the claimant was discharged not only for failing to produce the requested permission,
but also for failure to perform to the employer's standard. However, the Board notes that the claimant was suspended pending discharge immediately after admitting that he had not obtained the requested permissions from his previous employers. Therefore, the Board finds that this is the sole reason for the claimant's discharge.(Id. at 2-3.)
While the Board in no way questions the employer's right to discharge the claimant, the employer has failed to meet its burden of proof because it has not provided credible testimony or evidence to support a finding that the claimant was discharged for willful misconduct.
On appeal to this Court, Employer essentially contends that substantial evidence does not exist to support the Board's findings of fact and that the Board erred in concluding Claimant did not engage in willful misconduct.
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. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.
First, we will address Employer's argument that substantial evidence does not exist to support the Board's findings of fact. Substantial evidence is defined as relevant evidence upon which a reasonable mind could base a conclusion. Johnson v. Unemployment Comp. Bd. of Review, 502 A.2d 738, 740 (Pa. Cmwlth. 1986). 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. A determination as to whether substantial evidence exists to support a finding of fact can only be made upon examination of the record as a whole. Taylor v. Unemployment Comp. Bd. of Review, 378 A.2d 829, 831 (Pa. 1977). The Board's findings of fact are conclusive on appeal only so long as the record, taken as a whole, contains substantial evidence to support them. Penflex, Inc. v. Bryson, 485 A.2d 359, 365 (Pa. 1984). "The fact that [a party] may have produced witnesses who gave a different version of the events, or that [the party] might view the testimony differently than the Board, is not grounds for reversal if substantial evidence supports the Board's findings." Tapco, Inc. v. Unemployment Comp. Bd. of Review, 650 A.2d 1106, 1108-09 (Pa. Cmwlth. 1994). Similarly, even if evidence exists in the record that could support a contrary conclusion, it does not follow that the findings of fact are not supported by substantial evidence. Johnson v. Unemployment Comp. Bd. of Review, 504 A.2d 989, 990 (Pa. Cmwlth. 1986).
Employer appears to argue that the Board's finding that Claimant was discharged for failing to produce the requested permission and not for other misconduct is not supported by substantial evidence. The Referee heard evidence from Employer's two witnesses and from Claimant. The first witness was Dean Gartland, Employer's President and Chief Executive Officer.
Mr. Gartland testified to multiple exhibits, all of which indicated a history of missing deadlines, insubordination, and repeated violations of Employer's Policies. Specifically, Mr. Gartland testified that about three months into Claimant's employment, Mr. Gartland began to realize that something was wrong. Claimant was consistently not meeting deadlines and was working in direct disregard for Employer's interest. Additionally, Mr. Gartland further testified that he entered into a "performance improvement plan" with Claimant and felt that there were significant issues with Claimant's performance. (Reproduced Record (R.R.) at 11a.) He was concerned that Claimant was being insubordinate and appeared to incur a "growing indifference towards his job." (Id.) According to Mr. Gartland, the purpose of the performance improvement plan was for Claimant to take the deadlines more seriously, improve his communication, and better manage his department. Mr. Gartland also testified that Claimant was not working to the best of his ability. Also, before the performance improvement plan, there were at least three meetings to discuss Claimant's deficiencies. Mr. Gartland explained the significance of Employer's policy manual, which reiterates the importance of staying focused on priorities and being accountable for outcomes and deadlines. He also explained that if an employee could not meet a deadline, the employee should give sufficient notice and explain why. Mr. Gartland testified that Claimant signed a document stating that he understood and would comply with Employer's policy manual, and he was given a copy of the document.
Mr. Gartland's testimony went on to explain Employer's computer policy. According to Mr. Gartland's testimony, the computers should be used only for conducting Employer's business and each employee is subject to a check "from time-to-time." (R.R. at 15a.) If there are violations, an employee may be disciplined or terminated. When asked whether he felt there was ever a time Claimant deliberately violated Employer's rules, he responded by explaining his "deep concern" about and subsequent reporting to his boss of Claimant's inappropriate storage on the computer server of large amounts of confidential donor information from Claimant's previous employment. Mr. Gartland then testified about a September 30, 2013, meeting regarding this large amount of information, during which he asked Claimant whether he had permission to have that information and if he could provide documentation showing proof of permission. According to Mr. Gartland's testimony, Claimant agreed to get the documentation "immediately." (R.R. at 16a.) Mr. Gartland then explained that a couple days later he asked Claimant if he had the documentation, but Claimant did not have it. Mr. Gartland testified that he gave Claimant another deadline—the day of the performance improvement plan meeting—to provide the documentation. At that performance improvement plan meeting on October 10, 2013, Claimant again responded that he did not have the documentation. After Claimant's response, Mr. Gartland explained that the meeting did not need to go further. He then suspended Claimant's employment. A few days later, Employer discharged Claimant. On cross-examination, Mr. Gartland stated to Claimant: "[Y]ou were suspended because you did not do again what I asked you to do which was to meet a deadline which is insubordination. You tell me yes and you don't do it. Yes I suspended you because you did not meet the deadline again." (R.R. at 20a.) As to the deadline, Mr. Gartland testified that he set the deadline in the "presence of other witnesses," but he "didn't put it in writing." (Id.)
Later, the Referee asked Mr. Gartland: "[I]f [Claimant] had provided you with anything in writing from prior employers that showed that he had authorization for these records would he have been discharged?" (R.R. at 28a.) Mr. Gartland answered in the affirmative and explained that the reason would have been for "[p]oor performance." (Id.)
The next witness for Employer was Employer's Chief Financial Officer (CFO), Denise Henning. She testified to her job as CFO and her responsibilities as the administrator of information technology for Employer. Upon counsel asking a question to Ms. Henning about whether she felt there was ever a time Claimant deliberately violated Employer's policy or negligently demonstrated a wrongful intent or substantial disregard of the Employer's interest, she responded by explaining the situation regarding Claimant's inappropriate storage of private donor information from his previous employer on the computer server, which caused the server to reach the "critical storage point." (R.R. at 21a-22a.) Ms. Henning further testified that the storage amount was "5.8 gigabytes which is excessive given that we store our information on Share Folders not in separate user folders" and that Employer would be charged for the additional space if information was not removed. (R.R. at 21a.) Claimant's file is, according to Ms. Henning, "double the largest of anybody." (Id.) Ms. Henning then went on to testify about Employer's computer use policy and that the computers are to be used for business, except for the incidental and occasional use that does not affect job performance, and the computers are subject to random inspections. Ms. Henning further testified that Claimant had a "very substantial" internet history where "90 percent [of the sites] were not related to the [business]," and it was her opinion that Claimant violated company policy. (R.R. at 22a-23a.)
With regard to the meeting on October 10, 2013, Claimant testified that he thought it was clear that he was fired for not getting the requested permissions and was not fired for his work history. Specifically, Claimant testified:
Virtually the first thing I asked Mr. Gartland is if he was going to fire me . . . And he said well that depends on your answer to my question. My question is did you get the authorizations. And we didn't get any further than just to talk about the authorizations at that point. So really to bring up all of this work history which I would be happy to provide but I don't think I need to because that was not the reason why I was suspended and then terminated. It was made clear to me by Mr. Gartland that [the firing] was due to not getting authorization and that [Mr. Gartland] had some trust issues. My performance review never came into that at all.(R.R. at 25a.) Moreover, Claimant explained: "[Mr. Gartland] never gave me a deadline. He never gave me anything in writing. He never gave me an expectation of when these needed to be in and he knew I was trying to get these." (R.R. at 24a.) Further, Claimant testified that he actually got one of the authorizations. He contended that Mr. Gartland's secretary received a phone call from one of Claimant's previous employers, indicating that Claimant had permission to have the files. Claimant was unable to reach the other employer, because the only person who knew about the files was the executive director who had retired. Because of this, Claimant informed Mr. Gartland that it would take him a couple of days to reach the executive director. Claimant testified that Mr. Gartland responded, "don't bother . . . you know I'm not giving you anymore time." (Id.) Claimant finished his testimony about that day by saying:
So again I want to very explicitly state that the suspension and discharge were related to not getting the permissions from my prior employers. It was not related to any work history. As a matter of fact we didn't get to my work history that day because [Mr. Gartland] shut up the conversation after I told him that I hadn't gotten the authorizations as yet.(Id.)
Claimant then went on to testify that the policy manual given to employees does not deal with files and only deals with software. He explained that "nothing was ever given to [him] in writing indicating that [he] was violating willfully any of the established policies." (Id.) Claimant testified that he never received any documents indicating what he did to violate policies to lead to his firing. Although he asked for details, he received only a "very generic termination letter" which did not address the details of his firing. (R.R. at 27a.) He then entered into evidence the termination letter. Claimant concluded his testimony by stating: "[Mr. Gartland] knew very well that I had files from [a previous employer]. We talked about it many times. And he agreed with me that it would be helpful in terms of hurrying the [capital campaign] process along." (R.R. at 26a.)
Although Employer testified that it discharged Claimant for numerous reasons including continued failure to meet deadlines, the Board found Claimant's testimony that he was discharged for failure to produce the requested permissions to be more credible. It was well within the purview of the Board to resolve this evidentiary conflict in favor of Claimant. Peak v. Unemployment Comp. Bd. of Review, 501 A.2d 1383, 1388 (Pa. 1985) (concluding that Board is ultimate fact finder and is entitled to make credibility determinations). Moreover, because we find substantial evidence to support the Board's decisions, even if there are different versions of the events that could support a contrary conclusion, we are precluded from reversing the Board's determination. Tapco, Inc., 650 A.2d at 1108-09; Johnson, 504 A.2d at 990. Claimant's testimony, therefore, constitutes substantial evidence to support the Board's finding that Claimant was not given a deadline and was discharged because he had not obtained the requested permissions from his previous employers to possess the data in question.
We next address Employer's issues on appeal challenging the Board's legal conclusions as to willful misconduct. Section 402(e) of the Law provides, in part, that an employee shall be ineligible for compensation for any week in which "his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work." The term "willful misconduct" is not defined by statute. The courts, however, have defined "willful misconduct" as:
(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.Grieb v. Unemployment Comp. Bd. of Review, 827 A.2d 422, 425 (Pa. 2003).
The burden of proving willful misconduct rests with the employer. Guthrie v. Unemployment Comp. Bd. of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999). "It is not always necessary . . . to find that a rule has been violated to establish 'willful misconduct.' An employee's refusal, without good cause, to obey the reasonable directive of his employer can also constitute 'willful misconduct.'" Bailey v. Unemployment Comp. Bd. of Review, 457 A.2d 147, 149 (Pa. Cmwlth. 1983). When a claimant is terminated for refusing to comply with an employer's directive, the employer has the burden to establish the reasonableness of the directive. See Blue v. Unemployment Comp. Bd. of Review, 616 A.2d 84, 86 (Pa. Cmwlth. 1992), appeal denied, 626 A.2d 1159 (Pa. 1993). Once the employer meets its burden, the burden shifts to the claimant to show good cause for his refusal to comply with the directive. Blue, 616 A.2d at 86-87. A claimant has good cause if his actions are reasonable and justifiable under the circumstances. Docherty v. Unemployment Comp. Bd. of Review, 898 A.2d 1205, 1208-09 (Pa. Cmwlth. 2006). Whether an employee's conduct constitutes willful misconduct and whether a claimant has proved good cause are questions of law subject to our review. Dep't of Corr. v. Unemployment Comp. Bd. of Review, 943 A.2d 1011, 1015-16 (Pa. Cmwlth. 2008).
Furthermore, "we have consistently held that advance warning is not a prerequisite to a finding of willful misconduct." Reed v. Unemployment Comp. Bd. of Review, 414 A.2d 172, 174 (Pa. Cmwlth. 1980). --------
While willful misconduct and whether a claimant has proved good cause are questions of law, the findings of fact, so long as supported by substantial evidence, must not be disturbed. Here, Employer's argument that the Board erred in concluding that Claimant did not engage in willful misconduct is based primarily on Employer's versions of the facts. We are unable to consider Employer's versions of the facts. Thus, the firing was not because of missing a deadline or any of the other arguments advanced by the Employer, but because he had not obtained the requested permissions from his previous employers to possess the data in question. We will now consider whether this act alone constitutes willful misconduct.
The Board properly determined that Claimant's conduct did not constitute willful misconduct under the Law. Here, Employer gave Claimant a directive to produce the requested permissions from his previous employers to possess the data in question. Employer provided no deadline to produce these documents. While it is reasonable to require that Claimant produce the requested permissions, it cannot be the case that the directive was violated, because Employer did not give Claimant a timeframe during which the permissions must be produced and Claimant was in the process of obtaining the permissions.
Even if the failure to obtain the requested permissions could be considered a failure to follow Employer's directive, Claimant had good cause for failing to do so. The Board found that Claimant informed Employer that one of the individuals he needed to contact had retired and it would take time to get the requested permission. There were eight business days between the initial meeting requesting the permissions (on or around September 30, 2013) and the firing (October 10, 2013). Given that Claimant was still attempting to contact his previous employers and he was having difficulty contacting a person from whom he sought to obtain proof of permission, Claimant had good cause for failing to provide the requested permissions during that eight-day period.
Accordingly, we affirm the order of the Board.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 14th day of May, 2015, the order of the Unemployment Compensation Board of Review is AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge