C. E. Sharpe v. UCBR (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Calvin E. Sharpe, Petitioner v. Unemployment Compensation Board of Review, Respondent BEFORE: : : : : : : : : No. 1339 C.D. 2007 SUBMITTED: October 19, 2007 HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES R. KELLEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE LEADBETTER FILED: January 23, 2008 Calvin E. Sharpe (Claimant) petitions for review pro se of the order of the Unemployment Compensation Board of Review (Board), affirming the referee s decision finding Claimant ineligible for benefits on the grounds of willful misconduct pursuant to Section 402(e) of the Unemployment Compensation Law.1 On appeal to this Court, Claimant argues that the Board erred as a matter of law in holding that his behavior constituted willful misconduct.2 We affirm. 1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937), as amended, 43 P.S. § 802(e). Claimant presents numerous arguments in his appeal from the referee s decision and his Petition for Review, as well as in his brief. However, this is the only argument that has been properly preserved for review. 2 The Board s findings of fact can be summarized as follows: Claimant was employed as an assistant manager by Valenti Mid Atlantic Management (Employer). Employer had in place an employee policy prohibiting arguing and profanity with guests, employees and management. According to the Employer s policy, employees who violated this rule could be terminated. Claimant knew or should have known about this policy. Claimant was involved in an incident with a co-worker and went to the General Manager the following day to ask if he had spoken to the co-worker about the incident. When the General Manager said he had, Claimant became angry and directed profanity at the General Manager. Despite warnings from the General Manager, Claimant continued using profanity. The General Manager did not use profanity. Claimant was suspended and then discharged for directing profanity at the General Manager in violation of Employer s policy. After his compensation benefits. termination, Claimant applied for unemployment The Lancaster Unemployment Compensation Center granted benefits. Employer appealed and, after a hearing, a referee denied benefits. Claimant appealed to the Board, whose order affirming the referee s decision is under review here. We begin by noting that, [w]here there is a conflict of testimony, credibility determinations and the resolution of evidentiary conflicts are within the [Board s] discretion and are not subject to reevaluation on judicial review. Duquesne Light Co. v. Unemployment Comp. Bd. of Review, 648 A.2d 1318, 1320 (Pa. Cmwlth. 1994) (citation omitted). Therefore, any evaluation of the contradictions between the testimony of Employer s witnesses and Claimant is beyond our review. 2 Claimant submits that his actions, though possibly thoughtless, do not rise to the level of willful misconduct. While willful misconduct is not defined by statute, it has been judicially described as: (1) the wanton and willful disregard of the employer s interest, (2) the deliberate violation of rules, (3) the disregard of standards of behavior which an employer can rightfully expect from his employee, or (4) negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard for the employer s interests or the employee s duties and obligations. Guthrie v. Unemployment Comp. Bd. of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999) [citing Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Comp. Bd. of Review, 309 A.2d 165, 168-69 (Pa. Cmwlth. 1973)]. In the case sub judice, Claimant was terminated for a violation of Employer s rules. In such cases, the employer has the burden of proving both the existence of a reasonable work rule and its violation. See Metro. Edison Co. v. Unemployment Comp. Bd. of Review, 606 A.2d 955, 957 (Pa. Cmwlth 1991). After employer has met this burden, the employee must prove that he had good cause for violating the rule. See id. at 958 [citing Williams v. Unemployment Comp. Bd. of Review, 596 A.2d 1191 (1991)]. Good cause exists where the action of the employee is justified or reasonable under the circumstances. Guthrie, 738 A.2d at 522 [quoting Frumento v. Unemployment Comp. Bd. of Review, 466 Pa. 81, 87, 351 A.2d 631, 634 (1976)]. Where, as here, the employee claims there was good cause for violating the rule, the Court must examine whether the action of the employee is justifiable or reasonable under the circumstances. Metro., 606 A.2d at 958. 3 We first examine whether Employer had a reasonable work rule and, if so, whether Claimant violated that rule. The Board found that Employer had in place a policy stating that employees could be discharged for [f]ighting, arguing, directing profanity at, or behaving in a hostile or threatening manner towards guests, employees, or management. Board s Finding of Fact 3 (June 20, 2007). Employer s policy, contained in the employee handbook, was admitted into evidence and supports this finding. Claimant also knew or should have known about the policy, as evidenced by his signed statement that he had received an employee handbook and agreed to abide by all of its provisions. The rule is clearly a reasonable one. Furthermore, the Board found that Claimant used profanity and argued with the General Manager in violation of the rule. Testimony from the General Manager supports this finding. Although Claimant presented testimony to the contrary, the Board, in its discretion, credited Employer s witnesses, a matter not subject to our review. Even if Employer did not have an express rule, it is wellsettled that a claimant s use of abusive, vulgar or offensive language, without justification, evidences a disregard of the standards of behavior that an employer can rightfully expect from an employee. See generally Leone v. Unemployment Comp. Bd. of Review, 885 A.2d 76 (Pa. Cmwlth. 2005); Williams v. Unemployment Comp. Bd. of Review, 531 A.2d 88 (Pa. Cmwlth. 1987); Dodson v. Unemployment Comp. Bd. of Review, 437 A.2d 1080 (Pa. Cmwlth. 1981). In his brief, Claimant asserts good cause for his conduct. However, he fails to develop this argument or provide any support for it. Citing BrowningFerris Industries of Pennsylvania, Inc. v. Unemployment Comp. Bd. of Review, 561 A.2d 856 (Pa. Cmwlth. 1989), Claimant argues that his actions were a single instance of bad judgment that cannot constitute willful misconduct. Browning- 4 Ferris, however, dealt with a single instance of negligence. Here, Claimant s conduct was not negligence. Claimant used unprovoked profanity when speaking with a supervisor, violating both a work rule and a standard of behavior which employers can rightfully expect from employees. See generally Brandt v. Unemployment Comp. Bd. of Review, 537 Pa. 267, 643 A.2d 78 (1994). A single incident of offensive language can rise to the level of willful misconduct. See Poplin v. Unemployment Comp. Bd. of Review, 690 A.2d 781 (Pa. Cmwlth. 1997) (citation omitted). As such, Claimant has not met his burden. Accordingly, we affirm. _____________________________________ BONNIE BRIGANCE LEADBETTER, President Judge 5 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Calvin E. Sharpe, Petitioner v. Unemployment Compensation Board of Review, Respondent : : : : : : : : No. 1339 C.D. 2007 ORDER AND NOW, this 23rd day of January, 2008, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED. _____________________________________ BONNIE BRIGANCE LEADBETTER, President Judge

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