M. Veres v. UCBR (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Mihai Veres, Petitioner v. Unemployment Compensation Board of Review, Respondent BEFORE: : : : : : : : : No. 1630 C.D. 2007 SUBMITTED: December 14, 2007 HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE JOSEPH F. McCLOSKEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE LEADBETTER FILED: January 30, 2008 Mihai Veres petitions for review of the order of the Unemployment Compensation Board of Review (Board) which affirmed the referee s denial of unemployment benefits under Section 402(e) of the Unemployment Compensation Law1 due to his discharge for willful misconduct. After review, we affirm. Veres was employed by James Craft & Son, Inc., as a full-time plumber and pipe fitter. Veres was discharged on April 5, 2007, on the basis of 1 Act of December 5, 9136, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e). This section provides that an employee shall be ineligible for compensation for any week in which his employment is due to his discharge or temporary suspension from work for willful misconduct connected with his work. insubordination and disrespect toward his supervisor. Veres subsequent application for unemployment benefits was denied, after which he appealed and a hearing was held before a referee. At the hearing, Employer s Human Resources Director, Melissa Bowman, testified that Veres signed an acknowledgment that he received a copy of Employer s personnel policy manual, which specifically stated that, [t]he following actions may result in immediate dismissal: . . . 13. Insubordination or disrespect to supervisor or management employee. Original Record, Exhibit 10. Jason Glatfelter, a supervisor with Employer, testified that on the day in question, he was asked by another foreman to find work for Veres, which he did. Glatfelter testified that when he saw Veres talking with another employee, he asked him why he wasn t up on the third floor working. According to Glatfelter, Veres got in his face yelling at him and using profanities and threatening language. Glatfelter stated that he asked Veres three times to walk away and return to work. Glatfelter later called his superior, Alan Jordan, to report the incident. Veres countered that he was not aware that Glatfelter was his supervisor that day and that he was getting supplies for an employee on the third floor when Glatfelter saw him talking with another employee. Veres testified that it was Glatfelter who jumped up and got in his face and threatened him. Veres stated that he was just talking to Glatfelter but he admitted that after Glatfelter kept yelling, he snapped back for a few minutes and used several profane words. Veres denied threatening Glatfelter, however. Based on the testimony at the hearing, the referee made the following findings of fact: 1. The claimant was last employed on April 5, 2007, as a full-time plumber/pipe fitter for James Craft & Son, earning $21.75 per hour. 2 2. On April 5, 2007, the claimant was being given direction by the employer s project foreman. 3. The project foreman assigned the claimant to work with a heating and ventilation issue on the third floor of the job site. 4. The project foreman caught the claimant on the first floor talking on two occasions that day. 5. The project foreman determined that the claimant was doing little to no work on the third floor assisting with the project. 6. He advised the claimant that if he needed something to do, he would get him other work. 7. The claimant responded by getting in the project foreman s face and verbally attacking him. 8. The supervisor asked the claimant to calm down and leave the situation on at least three occasions. The claimant refused to do so and proceeded to call the supervisor a backstabber, a c**ksu**er, and motherf**ker, and advised the supervisor that he would kick his ass. 9. On April 5, 2007, the claimant was discharged for insubordination and disrespect toward his supervisor. Referee s Decision and Order, (No. 07-09-F-2750, mailed June 13, 2007). The referee concluded that Veres conduct rose to the level of willful misconduct and denied benefits. Veres appealed to the Board, which, after consideration of the entire record, adopted the findings of facts and conclusions of the referee and affirmed the referee s decision denying benefits. followed. 3 The present pro se appeal On appeal, Veres argues that the Board erred in affirming the referee s decision because the referee completely ignored his testimony and credited instead the testimony of Employer s witness, Jason Glatfelter, who, Veres contends, not only altered and omitted certain facts, but had an obvious personal vendetta against him. Secondly, Veres argues that Employer did not meet its burden of proving that his actions that day rose to the level of willful misconduct and, therefore, it was an error of law for the Board to affirm the referee s decision. Willful misconduct has been defined 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, 573 Pa. 594, 600, 827 A.2d 422, 425 (2003) [quoting Navickas v. Unemployment Comp. Bd. of Review, 567 Pa. 298, 787 A.2d 284, 288 (2001)]. Employer bears the burden of proving willful misconduct. Caterpillar, Inc. v. Unemployment Comp. Bd. of Review, 550 Pa. 115, 703 A.2d 452 (1997). Whether a claimant s actions rise to the level of willful misconduct is a question of law subject to this court s plenary review. Frazier v. Unemployment Comp. Bd. of Review, 833 A.2d 1181 (Pa. Cmwlth. 2003). However, credibility and evidentiary weight are determined by the Board and the Board s findings of fact are conclusive on appeal when the record, in its entirety, contains substantial evidence to support those findings. Guthrie v. Unemployment Comp. Bd. of Review, 738 A.2d 518 (Pa. Cmwlth. 1999). 4 Veres argues that he was not allowed to tell his version of what happened to Employer and that on the day he was discharged, while he admittedly used verbal expressions [often used] on construction job sites by most workers but classified as profanities, that it was Glatfelter who became verbally aggressive, walked in the claimants[sic] face and threatened him with more actions of the same kind he did that day. Petitioner s Brief at 10. However, the referee clearly credited the testimony of Employer s witness, Glatfelter, and the Board resolved the conflicting testimony in favor of the Employer. Inasmuch as we are not permitted to overturn the Board s credibility determinations, Guthrie, 738 A.2d 518, and the Board s findings are supported by the testimony of Employer s witness, we conclude that this contention has no merit. Finally, we reach Veres assertion that Employer did not meet its burden of proving that his conduct that day amounted to willful misconduct, thus disqualifying him from receiving unemployment benefits. In particular, Veres asserts that his behavior was in no way disrespectful and, therefore, not insubordinate. The only thing Employer proved was that he used profanity, which, standing alone, would not have warranted his discharge.2 Employer s witness Melissa Bowman testified that it was not the profanity alone which caused Veres discharge, but the fact that he was disrespectful in confronting Glatfelter. In addition, Employer presented evidence that Veres was or should have been aware 2 See, however, Leone v. Unemployment Comp. Bd. of Review, 885 A.2d 76, 81 (Pa. Cmwlth. 2005)(Claimant admitted directing profanities at supervisor in front of employer s customers); Allen v. Unemployment Comp. Bd. of Review, 638 A.2d 448, 451 (Pa. Cmwlth. 1994)(Claimant s language was vulgar and offensive and was neither provoked nor de minimis); Losch v. Unemployment Comp. Bd. of Review, 461 A.2d 344, 346 (Pa. Cmwlth. 1983)(Even a single instance of vulgarity addressed to and unprovoked by a supervisor may support a finding of willful misconduct). 5 of Employer s rule that insubordination and disrespect toward a supervisor may result in immediate dismissal, as stated in the company s personnel policy manual, which Veres signed. Furthermore, Veres admitted to using profanities when addressing Glatfelter. Glatfelter also testified that in addition to being verbally abusive towards him, Veres also threatened to kick his ass, which the Board found as a fact. Because the Board rejected Veres testimony, he failed to establish good cause for his conduct. Accordingly, we believe that the Board had ample evidence to support its finding that Veres conduct rose to the level of willful misconduct and, therefore, affirm the order of the Board. _____________________________________ BONNIE BRIGANCE LEADBETTER, President Judge 6 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Mihai Veres, Petitioner v. Unemployment Compensation Board of Review, Respondent : : : : : : : : No. 1630 C.D. 2007 ORDER AND NOW, this 30th 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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