Giarrizzo v. Unemployment Comp. Bd. of Review
| Decision Date | 18 November 2013 |
| Docket Number | No. 632 C.D. 2013,632 C.D. 2013 |
| Parties | Thomas A. Giarrizzo Jr., Petitioner v. Unemployment Compensation Board of Review, Respondent |
| Court | Commonwealth Court of Pennsylvania |
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
Thomas A. Giarrizzo, Jr., (Claimant) petitions this Court for review of an order of the Unemployment Compensation Board of Review (Board) holding him ineligible to receive unemployment compensation benefits under Section 402(e) of the Unemployment Compensation Law (the Law).1 We affirm.
Claimant was employed by Mount Airy Casino Resort (Employer) as a public area attendant from April 18, 2011 through October 29, 2012. (Record Item (R. Item) 14, Board Decision and Order, Findings of Fact (F.F.) ¶1; R. Item 8, Hearing Transcript (H.T.) at 5-7.) Prior to October 29, 2012, Claimant had received several disciplinary actions from Employer, including a warning and asuspension for incidents involving insubordinate conduct. (R. Item 14, F.F. ¶¶2-3; R. Item 8, H.T. at 10-11; R. Item 3, Employer Separation Information, Service Center Exs. 22, 27-31, 37.) Employer's work rules and policies required employees to request permission from a supervisor before leaving work early. (R. Item 14, Board Decision and Order at 3; R. Item 8, H.T. at 8-10.)
On October 29, 2012, the day that Hurricane Sandy struck, Claimant was scheduled to work from 3:00 p.m. to 11:00 p.m. (R. Item 14, F.F. ¶4; R. Item 8, H.T. at 13-14.) Before reporting to work, Claimant called the manager of his department and asked whether Employer would be closed because of Hurricane Sandy. (R. Item 14, F.F. ¶5; R. Item 8, H.T. at 15.) The manager told Claimant that Employer was open, but that Claimant could report off if he was concerned, in which case he would be assessed one attendance point unless Employer determined that there was a weather emergency. (R. Item 14, F.F. ¶¶5-6; R. Item 8, H.T. at 15.) Although he had a good attendance record and his job would not have been in jeopardy if he reported off, Claimant reported to work. (R. Item 14, F.F. ¶7; R. Item 8, H.T. at 15-16, 34, 43.)
During his shift, at approximately 3:45 p.m., Claimant told his supervisor that a security guard had told him that the highways were closing because of the storm, but when his supervisor asked which security guard gave him that information, Claimant said he did not know. (R. Item 14, F.F. ¶¶8-9; R. Item 8, H.T. at 18, 22.) Claimant did not ask his supervisor for permission to leave at that time or at any other time during his shift. (R. Item 14, F.F. ¶13; R. Item 8, H.T. at 18-19.) Around 8:00 p.m., Claimant asked a co-worker if he could use her radio to notify the supervisor that he was leaving. (R. Item 14, F.F. ¶11; R. Item 8, H.T. at 23-25; R. Item 3, Employer Separation Information, Service Center Ex.19.) Claimant told the co-worker that he did not care what anyone said and that the department manager "can kiss my a--." (R. Item 14, F.F. ¶11; R. Item 8, H.T. at 23-24; R. Item 3, Employer Separation Information, Service Center Ex. 19.) At approximately 8:16 p.m., Claimant punched out before the end of his shift without requesting permission from his supervisor. (R. Item 14, F.F. ¶13; R. Item 8, H.T. at 19-20.) Claimant told his supervisor that he was leaving, and the supervisor told Claimant that he could not just walk out without requesting permission. (R. Item 14, F.F. ¶¶12-15; R. Item 8, H.T. at 19-20.) Claimant, in response, told the supervisor that he did not care and left. (R. Item 14, F.F. ¶15; R. Item 8, H.T. at 19-20.) At the time Claimant left, Employer was open for business and had customers. (R. Item 8, H.T. at 22.) None of the other employees on Claimant's shift on October 29, 2012 left early. (R. Item 8, H.T. at 16, 21, 26.)
The next day, the supervisor reported Claimant's leaving work without permission to the department manager. (R. Item 8, H.T. at 16-17; R. Item 3, Employer Separation Information, Service Center Exs. 16-17.) On October 31, 2012, when Claimant next reported to work, he stated that he left work early "due to bad weather condition" and "due to personal safety." (R. Item 14, F.F. ¶17; R. Item 8, H.T. at 40-42; R. Item 3, Employer Separation Information, Service Center Ex. 18.) Employer discharged Claimant for walking out on his shift and making the inappropriate comment concerning his department manager. (R. Item 14, F.F. ¶18; R. Item 8, H.T. at 8-10; R. Item 3, Employer Separation Information, Service Center Ex. 14.)
Claimant filed for unemployment benefits and the Unemployment Compensation Service Center found Claimant eligible. The Service Center found that Employer sustained its burden of showing willful misconduct, but thatClaimant had shown good cause for his actions. (R. Item 4, Service Center Notice of Determination.) Employer appealed and the referee conducted a hearing at which Claimant was represented by counsel and testified, several witnesses for Employer testified, and documents concerning the events surrounding Claimant's discharge and concerning his disciplinary history were introduced into evidence. The referee reversed the Service Center's determination and held that Claimant was ineligible for benefits because of willful misconduct. (R. Item 9, Referee Decision and Order at 2.)
Claimant appealed to the Board. On March 21, 2013, the Board issued a Decision and Order affirming the referee's denial of benefits. The Board resolved the conflicts between Claimant and Employer's witnesses in favor of Employer. (R. Item 14, Board Decision and Order at 3.) The Board found that Claimant left work early without requesting permission or explaining why he needed to leave and expressed to his co-worker that the department manager could "kiss my a--." (R. Item 14, Board Decision and Order at 3 & F.F. ¶¶8-16.) The Board concluded that this behavior constituted willful misconduct, that Claimant had not shown good cause for his conduct, and that Claimant was therefore ineligible for benefits under Section 402(e) of the Law. (R. Item 14, Board Decision and Order at 3-4.) Claimant timely filed a petition for review appealing the Board's order to this Court.2
In unemployment compensation cases, the burden of proving willful misconduct is on the employer. Caterpillar, Inc. v. Unemployment Compensation Board of Review, 550 Pa. 115, 123, 703 A.2d 452, 456 (1997); Grand Sport Auto Body v. Unemployment Compensation Board of Review, 55 A.3d 186, 190 (Pa. Cmwlth. 2012) (en banc); Walsh v. Unemployment Compensation Board of Review, 943 A.2d 363, 368 (Pa. Cmwlth. 2008). To prove willful misconduct, the employer must show: (1) wanton or willful disregard of the employer's interests, (2) deliberate violation of the employer's rules, (3) disregard of standards of behavior that an employer can rightfully expect from an employee, or (4) negligence that indicates an intentional disregard for the employer's interests or the employee's duties or obligations. Temple University v. Unemployment Compensation Board of Review, 565 Pa. 178, 182, 772 A.2d 416, 418 (2001); Caterpillar, Inc., 550 Pa. at 123, 703 A.2d at 456; Grand Sport Auto Body, 55 A.3d at 190; Walsh, 943 A.2d at 369.
If the employer shows that the claimant violated a work rule or disregarded standards of behavior that an employer can rightfully expect, the burden shifts to the claimant to demonstrate good cause for his conduct. Grand Sport Auto Body, 55 A.3d at 190; Department of Corrections v. Unemployment Compensation Board of Review, 943 A.2d 1011, 1015 (Pa. Cmwlth. 2008); Walsh, 943 A.2d at 369. Whether a claimant's actions constitute willful misconduct and whether the claimant has shown good cause for his actions are questions of law fully reviewable on appeal. Grand Sport Auto Body, 55 A.3d at 190; Department of Corrections, 943 A.2d at 1015-16.
Here, Employer clearly satisfied its burden of showing willful misconduct. It is well established that leaving work early without permissionconstitutes willful misconduct. Grand Sport Auto Body, 55 A.3d at 190; Grispino v. Unemployment Compensation Board of Review, 472 A.2d 288, 289 (Pa. Cmwlth. 1984); Simmons v. Unemployment Compensation Board of Review, 429 A.2d 121, 122 (Pa. Cmwlth. 1981); Jackamonis v. Unemployment Compensation Board of Review, 408 A.2d 581, 582 (Pa. Cmwlth. 1979); Dolan v. Unemployment Compensation Board of Review, 381 A.2d 1323, 1324 (Pa. Cmwlth. 1978). "Employers have 'the right to expect that ... employees will attend work when they are scheduled, that they will be on time, and that they will not leave work early without permission.'" Grand Sport Auto Body, 55 A.3d at 190 (quoting Fritz v. Unemployment Compensation Board of Review, 446 A.2d 330 (Pa. Cmwlth. 1982)). Use of vulgar language directed at a superior likewise constitutes willful misconduct, unless provoked by the superior's language or conduct toward the claimant. Leone v. Unemployment Compensation Board of Review, 885 A.2d 76, 81 (Pa. Cmwlth. 2005); Allen v. Unemployment Compensation Board of Review, 638 A.2d 448, 450-51 (Pa. Cmwlth. 1994); Viglino v. Unemployment Compensation Board of Review, 525 A.2d 450, 453 (Pa. Cmwlth. 1987).
The only question is whether Claimant met his burden of demonstrating good cause for his behavior on October 29, 2012. To prove good cause, the claimant must demonstrate that his actions were justifiable and reasonable under the circumstances. Grand Sport Auto Body, 55 A.3d at 190; Department of Corrections, 943 A.2d at 1015; Walsh, 943 A.2d at 369. Claimant argues that he had good cause to leave early because he was worried about his father, who was recovering from surgery, being alone in the storm. (Petitioner's Br. at 5, 8.) The Board, however, found that Claimant's version of events was not credible and that Claimant did not leave early to take care of his fathe...
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